                                                                      FILED
                                                                 Dec 12 2016, 6:09 am

                                                                      CLERK
                                                                  Indiana Supreme Court
                                                                     Court of Appeals
                                                                       and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Valerie K. Boots                                          Gregory F. Zoeller
      Indianapolis, Indiana                                     Attorney General of Indiana

                                                                Caryn N. Szyper
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Richard Dobeski,                                          December 12, 2016
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                49A02-1603-CR-440
              v.                                                Appeal from the Marion Superior
                                                                Court
      State of Indiana,                                         The Honorable Helen W. Marchal,
      Appellee-Plaintiff.                                       Judge
                                                                Trial Court Cause No.
                                                                49G15-1507-F6-26077



      Altice, Judge.


                                                Case Summary


[1]   Richard Dobeski appeals following his conviction for failure to register as a sex

      offender. Under the terms of the applicable statute, Dobeski was required to

      register “not more than seven (7) days after” his release from prison. Ind. Code

      § 11-8-8-7(g). On appeal, Dobeski argues that the State presented insufficient
      Court of Appeals of Indiana | Opinion 49A02-1603-CR-440 | December 12, 2016             Page 1 of 10
      evidence to support his conviction because seven days had not yet elapsed at the

      time he was arrested.


[2]   We reverse and remand with instructions to vacate Dobeski’s conviction.1


                                         Facts & Procedural History


[3]   In 2008, Dobeski was convicted of class C felony child molesting and class D

      felony possession of child pornography. He was sentenced to an aggregate term

      of eleven years. Pursuant to Indiana law, Dobeski was required to register as a

      sex offender upon his release from custody.


[4]   Dobeski was released from New Castle Correctional Facility on July 16, 2015.

      A “Transportation Detail” form introduced into evidence at trial indicates that

      a transport van carrying Dobeski and seven other inmates left the prison at 9:30

      a.m. Exhibit Volume, State’s Ex. 5. The form indicates that the van both arrived

      in and departed from “Indy” at 11:15 a.m., but nevertheless managed to drop

      off seven inmates while there. Id. The van then travelled to Portland, Indiana,

      where it dropped off its last passenger at 1:30 p.m. before arriving back at the

      prison at 2:30 p.m. The form does not indicate which inmates were dropped off

      at which location. No evidence was presented concerning what further




      1
       We held oral argument in this matter on November 17, 2016, at Perry Meridian High School in
      Indianapolis. We thank the students, faculty, and staff for their hospitality, and we commend counsel for the
      quality of their advocacy.

      Court of Appeals of Indiana | Opinion 49A02-1603-CR-440 | December 12, 2016                      Page 2 of 10
      processing, if any, the inmates underwent at their destination before they were

      free to go.


[5]   A sergeant with the Marion County Sheriff’s Office checked the sex offender

      database “sometime after 1:00 in the afternoon” on July 23, 2015, and found

      that Dobeski had not yet registered. Transcript at 10. At some point between

      2:00 and 2:30 p.m. that same day, a sheriff’s deputy located Dobeski at the

      Indianapolis Public Library and placed him under arrest for failure to register as

      a sex offender.


[6]   At trial, the State argued that seven days had elapsed between Dobeski’s release

      and his arrest. Specifically, the State argued that the evidence showed that

      Dobeski was released at 11:15 a.m. on July 16, 2015, and arrested between 2:00

      and 2:30 p.m. on July 23, 2015. According to the State, the “days” referred to

      in the statute were twenty-four-hour periods, beginning with the moment

      Dobeski was released from prison. In other words, Dobeski had precisely 168

      hours to register. Thus, the State argued Dobeski was in violation of the statute

      when he failed to register by 11:15 a.m. on July 23, 2015. Dobeski, on the

      other hand, argued that the statute gave him seven full calendar days to register,

      and that he therefore had until midnight on July 23, 2015 to do so.

      Consequently, Dobeski argued, his arrest was premature. The trial court

      ultimately accepted the State’s argument. Dobeski now appeals.


                                           Discussion & Decision




      Court of Appeals of Indiana | Opinion 49A02-1603-CR-440 | December 12, 2016   Page 3 of 10
[7]   In reviewing a challenge to the sufficiency of the evidence, we neither reweigh

      the evidence nor judge the credibility of witnesses. Atteberry v. State, 911 N.E.2d

      601, 609 (Ind. Ct. App. 2009). Instead, we consider only the evidence

      supporting the conviction and the reasonable inferences flowing therefrom. Id.

      If there is substantial evidence of probative value from which a reasonable trier

      of fact could have drawn the conclusion that the defendant was guilty of the

      crime charged beyond a reasonable doubt, the judgment will not be disturbed.

      Baumgartner v. State, 891 N.E.2d 1131, 1137 (Ind. Ct. App. 2008).


[8]   Although the issue in this case is framed as whether the evidence was sufficient

      to support Dobeski’s conviction, that determination turns on our interpretation

      of a statute. Statutory interpretation presents a question of law that we review

      de novo. Nicoson v. State, 938 N.E.2d 660, 663 (Ind. 2010). When faced with a

      question of statutory interpretation, we first examine whether the language of

      the statute is clear and unambiguous. City of Carmel v. Steele, 865 N.E.2d 612,

      618 (Ind. 2007). If it is, we need not apply any rules of construction other than

      to require that words and phrases be given their plain, ordinary, and usual

      meanings. Id. Where a statute is open to more than one interpretation, it is

      deemed ambiguous and subject to judicial construction. Taylor v. State, 7

      N.E.3d 362, 365 (Ind. Ct. App. 2014). Our primary goal in interpreting a

      statute is to ascertain and give effect to the legislature’s intent, and the best

      evidence of that intent is the statute itself. Nicoson, 938 N.E.2d at 663. We

      presume that the legislature intended for the statutory language to be applied in

      a logical manner in harmony with the statute’s underlying policy and goals.

      Court of Appeals of Indiana | Opinion 49A02-1603-CR-440 | December 12, 2016   Page 4 of 10
      Brown v. State, 912 N.E.2d 881, 894 (Ind. Ct. App. 2009), trans. denied.

      Additionally, “[t]he rule of lenity requires that penal statutes be construed

      strictly against the State and any ambiguities resolved in favor of the accused, . .

      . but statutes are not to be overly narrowed so as to exclude cases they fairly

      cover[.]” Meredith v. State, 906 N.E.2d 867, 872 (Ind. 2009) (internal citations

      and quotation marks omitted).


[9]   I.C. § 11-8-8-7(g) provides in relevant part that “[a] sex or violent offender not

      committed to the department shall register not more than seven (7) days after

      the sex or violent offender . . . is released from a penal facility[.]”2 In this case,

      we are asked to determine the manner in which this time should be computed.

      Dobeski argues that we should apply Ind. Trial Rule 6 to allow him seven full

      calendar days, excluding the day of his release. Under this approach, Dobeski

      would have had until the end of the day on July 23 to register, making his arrest

      premature. The State, on the other hand, offers two different possible

      interpretations. First, the State argues that we should count seven calendar

      days including the date of Dobeski’s release, which would have given Dobeski

      until the end of the day on July 22 to register. As an alternative, the State

      argues that we should count seven 24-hour periods—or 168 hours—from the

      moment of Dobeski’s release, which the State asserts occurred at 11:15 a.m. on

      July 16. Thus, according to the State, Dobeski had until 11:15 a.m. on July 23

      to register, and his arrest sometime between 2:00 and 2:30 on that date was



      2
          Failure to register as required by I.C. § 11-8-8-7 is a Level 6 felony. See I.C. § 11-8-8-17.


      Court of Appeals of Indiana | Opinion 49A02-1603-CR-440 | December 12, 2016                         Page 5 of 10
       therefore timely. For the reasons set forth below, we find both of the State’s

       proposed approaches to be inconsistent with Indiana law.


[10]   We first note that T.R. 6(A) governs the computation of “any period of time

       prescribed or allowed by these rules, by order of the court, or by any applicable

       statute[.]” (emphasis supplied). T.R. 6(A) provides as follows:


               In computing any period of time prescribed or allowed by these
               rules, by order of the court, or by any applicable statute, the day
               of the act, event, or default from which the designated period of
               time begins to run shall not be included. The last day of the
               period so computed is to be included unless it is:


                        (1) a Saturday,


                        (2) a Sunday,


                        (3) a legal holiday as defined by state statute, or


                        (4) a day the office in which the act is to be done is closed
                        during regular business hours.


               In any event, the period runs until the end of the next day that is
               not a Saturday, a Sunday, a legal holiday, or a day on which the
               office is closed. When the period of time allowed is less than
               seven [7] days, intermediate Saturdays, Sundays, legal holidays,
               and days on which the office is closed shall be excluded from the
               computations.


[11]   Although there is no comparable provision in the criminal rules, Ind. Crim.

       Rule 21 provides that the rules of trial procedure apply in criminal proceedings


       Court of Appeals of Indiana | Opinion 49A02-1603-CR-440 | December 12, 2016      Page 6 of 10
       “so far as they are not in conflict with any specific rule adopted by this court for

       the conduct of criminal proceedings.” See also Ward v. Ind. Parole Bd., 805

       N.E.2d 893, 893-93 (Ind. Ct. App. 2004) (applying T.R. 6(A) to calculate the

       60-day period within which a parole revocation hearing must be held, and

       consequently excluding date of the triggering event, i.e., date on which the

       parolee was extradited), trans. denied; Wente v. State, 440 N.E.2d 512, 513 (Ind.

       Ct. App. 1982) (applying T.R. 6(A) to compute the defendant’s time to file a

       motion to correct error).


[12]   We further note that the method of computation set forth in T.R. 6(A) is

       consistent across many sources of law in Indiana. Indeed, the Indiana Rules of

       Appellate Procedure set forth an identical computation method, as does the

       statute governing the computation of time under statutes addressing

       administrative procedures and orders. See Ind. App. R. 25; Ind. Code § 4-21.5-

       3-2. Additionally, Title 34 of the Indiana Code, which governs civil procedure,

       contains Ind. Code § 34-7-5-1, which provides that “[t]he time within which an

       act is to be done, as provided in this title, shall be computed by excluding the

       first day and including the last. If the last day is Sunday, that Sunday shall be

       excluded.” These rules and statutes clearly express the general rule in Indiana

       that when computing the time for performance of an act which must take place

       within a certain number of days of some triggering event, the day of the

       triggering event is not included. To accept the State’s argument that the day of

       Dobeski’s release should be included in this computation would mean that




       Court of Appeals of Indiana | Opinion 49A02-1603-CR-440 | December 12, 2016   Page 7 of 10
       Dobeski had only six full days and one fraction of a day within which to

       register instead of the “seven (7) days” allowed by I.C. § 11-8-8-7(g).


[13]   With respect to the State’s argument that we should interpret “seven (7) days”

       to mean 168 hours from the moment of Dobeski’s release, we note that Indiana

       case law has long defined a “day” as a twenty-four-hour period running from

       midnight to midnight. See Kirkpatrick v. King, 91 N.E.2d 785, 789 (Ind. 1950)

       (reasoning that “a day begins with the passing of midnight and continues until

       the succeeding midnight” (quoting Moag v. State, 31 N.E.2d 629, 632 (Ind.

       1941)); Benson v. Adams, 69 Ind. 353, 354 (1879) (explaining that a day

       “commences at 12 o’clock P.M. and ends at 12 o’clock P.M., running from

       midnight to midnight”). The State has not directed our attention to any

       authority supporting its argument that a “day” for the purposes of I.C. § 11-8-8-

       7(g) is a twenty-four-hour period running from the precise moment of the

       offender’s release. Indeed, the legislature’s use of a seventy-two-hour time

       frame elsewhere in I.C. § 11-8-8-7 indicates that when the legislature intends for

       a time frame to be calculated as a period of hours rather than full calendar days,

       it will make that intention clear.3




       3
         Even if we were to accept the State’s argument in this regard, the State has not proven the precise time of
       Dobeski’s release. The only evidence presented in this regard is the “Transportation Detail” form discussed
       above, which indicates that a van carrying Dobeski arrived in “Indy” at 11:15 a.m. and departed at the same
       time. Exhibit Volume, State’s Ex. 5. No evidence was presented to establish that Dobeski was one of the
       seven inmates dropped off in Indianapolis, nor did the State establish that Dobeski was free to go
       immediately upon his arrival. The difficulties associated with establishing the precise moment of Dobeski’s
       release in this case illustrate the impracticability of the State’s approach.

       Court of Appeals of Indiana | Opinion 49A02-1603-CR-440 | December 12, 2016                       Page 8 of 10
[14]   When the legislature enacted I.C. § 11-8-8-7(g), it did so against the backdrop of

       T.R. 6(A) and other authorities setting forth the commonly accepted method of

       computing time expressed in days. By declining to set forth a different

       computation method, the legislature evinced its intent that the “seven (7) days”

       referenced therein should be calculated in the usual manner. See Bright

       PCS/SBA Commc’ns v. Seely, 753 N.E.2d 757, 758 (Ind. Ct. App. 2001) (noting

       that “[n]umerous decisions have stated that, where a statute is silent as to the

       method of computing time, Trial Rule 6(A) will apply”). We do not find the

       State’s alternative constructions of the statute plausible, but even if we did, the

       most we could say for them is that they suggest that an ambiguity exists in the

       statute. See Naugle v. Beech Grove City Schools, 864 N.E.2d 1058, 1068 (Ind.

       2007) (finding ambiguity when asked to consider whether the word “day” as

       used in the Wage Payment Statute’s ten-day rule meant business days or

       calendar days). To the extent the phrase “seven (7) days” as used in I.C. § 11-8-

       8-7(g) could be viewed as ambiguous, the rule of lenity would compel us to

       resolve that ambiguity in Dobeski’s favor.


[15]   For all of these reasons, we conclude that T.R. 6(A) sets forth the proper

       method of computing the seven-day time frame set forth in I.C. § 11-8-8-7(g).

       Accordingly, we must exclude the day of the triggering event—Dobeski’s

       release, which took place on July 16, 2015—and allow Dobeski until the end of

       the seventh succeeding calendar day—or Thursday, July 23, 2015—to register

       as a sex offender. When Dobeski was arrested sometime between 2:00 and 2:30

       p.m. on that date, “seven (7) days” had not yet elapsed for the purposes of I.C.


       Court of Appeals of Indiana | Opinion 49A02-1603-CR-440 | December 12, 2016   Page 9 of 10
       § 11-8-8-7(g). Accordingly, Dobeski’s conviction for failure to register as a sex

       offender is not supported by the evidence.


[16]   Judgment reversed and remanded with instructions.


[17]   Riley, J. and Bradford, J., concur.




       Court of Appeals of Indiana | Opinion 49A02-1603-CR-440 | December 12, 2016   Page 10 of 10
