                                                             May 11 2015, 9:08 am




ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Stephen T. Owens                                          Gregory F. Zoeller
Public Defender of Indiana                                Attorney General of Indiana

Liisi Brien                                               J.T. Whitehead
Deputy Public Defender                                    Deputy Attorney General
Indianapolis, Indiana                                     Indianapolis, Indiana




                                            IN THE
    COURT OF APPEALS OF INDIANA

Mary K. Davis,                                            May 11, 2015

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          20A03-1411-PC-408
        v.                                                Appeal from the Elkhart Superior
                                                          Court; The Honorable George
                                                          Biddlecome, Judge;
State of Indiana,                                         20D03-1402-PC-2
Appellee-Plaintiff.




May, Judge.




Court of Appeals of Indiana | Opinion 20A03-1411-PC-408 | May 11, 2015                   Page 1 of 8
[1]   Mary K. Davis appeals the denial of post-conviction relief.1


[2]   We reverse.


                                  Facts and Procedural History
[3]   On August 22, 2002, the trial court sentenced Davis to eight years with four

      years suspended to probation after Davis entered a plea of guilty to Class C

      felony possession of a handgun following a felony conviction. On February 3,

      2005, Davis was released from incarceration.


[4]   On February 4, 2009, the State filed a violation of probation petition, alleging

      Davis did not pay restitution, court costs, and probationary user’s fees, while on

      probation. Davis admitted she had not paid and she did not dispute the amount

      owed. She indicated she had a pending application for Social Security disability

      and would be able to pay once she received that income.


[5]   From 2009 to 2012 the trial court held eleven status hearings regarding Davis’

      ability to pay. At a compliance hearing on June 9, 2011, Davis requested

      pauper counsel and counsel was appointed. On August 1, 2011, the State filed

      a supplemental violation of probation petition, alleging Davis failed a drug test




      1
        Davis also argues on appeal that restitution was improperly calculated as part of the civil judgment
      stemming from her 2009 probation violation. As she did not present this argument before the post-conviction
      court, it is now unavailable on appeal. See Taylor v. State, 710 N.E.2d 921, 923 (Ind. 1999) (appellant is
      limited to the specific grounds asserted before the trial court regarding an issue and cannot raise new
      arguments on appeal).

      Court of Appeals of Indiana | Opinion 20A03-1411-PC-408 | May 11, 2015                          Page 2 of 8
      in July 2011. The court continued its determination of that matter until

      January 5, 2012.


[6]   On December 23, 2011, the State charged Davis with Class C felony possession

      of a firearm by a serious violent felon and Class D felony identity deception.

      Davis did not appear for the January 5, 2012 hearing because she was

      incarcerated on the December 23 charges, and the trial court set the matter for a

      status conference on February 9, 2012. On January 10, 2012, the State filed a

      supplemental violation of probation petition alleging Davis violated her

      probation by committing new criminal offenses.


[7]   After a series of continuances, the trial court held a preliminary hearing on the

      State’s allegations that Davis violated probation by testing positive for

      marijuana and committing new crimes on May 17, 2012. At that hearing,

      Davis’ counsel indicated Davis wished to admit the probation violation. The

      trial court found Davis violated her probation by committing a new criminal

      offense. On June 28, 2012, the trial court reduced Davis’ financial obligations

      that had been at issue since 2009 to a civil judgment and ordered her to serve

      the four year suspended sentence.


[8]   On April 1, 2013, Davis filed a pro se motion to set aside probation, and the trial

      court denied her motion on April 15. On February 11, 2014, Davis filed a pro se

      petition for post-conviction relief. On May 12, Davis, by counsel, amended her

      petition, alleging her probation revocation counsel was ineffective because

      counsel did not object to the “unlawful revocation of her probation based on


      Court of Appeals of Indiana | Opinion 20A03-1411-PC-408 | May 11, 2015      Page 3 of 8
       commission of new criminal offenses that occurred after her probationary term

       had expired.” (Br. of Appellant at 7.)


[9]    The post-conviction court held a hearing at which Davis presented testimony

       from her probation officer and probation revocation counsel. On November 7,

       2014, the post-conviction court denied Davis’ petition. Davis appealed and

       filed a motion to expedite the appeal.


[10]   We granted Davis’ motion to expedite appeal and ordered her immediate

       release pending resolution of this appeal.


                                       Discussion and Decision
[11]   When reviewing a denial of post-conviction relief, we do not reweigh evidence

       or judge credibility of witnesses. Moody v. State, 749 N.E.2d 65, 67 (Ind. Ct.

       App. 2001), trans. denied. To prevail on appeal, the petitioner must show “the

       evidence is without conflict and leads unerringly and unmistakably to a

       conclusion opposite” that reached by the post-conviction court. Id. “It is only

       where the evidence is without conflict and leads to but one conclusion, and the

       post-conviction court has reached the opposite conclusion, that the decision will

       be disturbed as being contrary to law.” Id.


[12]   The post-conviction court denied Davis’ petition for post-conviction relief,

       finding and concluding:

               37.      Petitioner first contends that the Probation Department did not
                        have authority to file a Violation of Probation Petition on
                        February 4, 2009, because her term of probation expired on

       Court of Appeals of Indiana | Opinion 20A03-1411-PC-408 | May 11, 2015             Page 4 of 8
                     February 3, 2009, exactly four (4) years after her actual release
                     from prison. Petitioner, however, did not report to probation or
                     sign her Terms of Probation until February 14, 2009.[2] To find
                     that the release from IDOC operates to begin a probation term
                     would result in the possibility that a person could simply never
                     report to probation and avoid the probation process entirely,
                     until the probationary term had elapsed. This clearly thwarts
                     the intent and purpose of probation.
            38.      Even if her term of probation expired on February 3, 2009, Ind.
                     Code § 35-38-2-3(a)(2) allows a probation department to file a
                     petition to revoke probation up to one year after the end of the
                     probationary period. Therefore, the filing of the Violation of
                     Probation Petition in this case was timely.
            39.      Petitioner also claims that the court was without jurisdiction to
                     revoke her probation on the basis that she committed a new
                     criminal offense because she committed that new offense after
                     her probationary term had expired. Contrary to Petitioner’s
                     opinion, however, she committed the new criminal offense
                     while still on probation.
            40.      Ind. Code § 35-38-2-3(c) states that the period of probation is
                     tolled in certain circumstances. By its own terms, the statute
                     does not suspend the conditions of probation, rather it affects
                     the time a probationer will ultimately remain and serve on
                     probation. When a petition is filed charging a violation of a
                     condition of probation, and the court orders [a] summons or
                     bench warrant, the issuance of that summons or bench warrant
                     tolls the period of probation until the final determination of the
                     charge. Id. at 538.[3] [sic] A probationer remains on probation
                     and is subject to the conditions of his probation while the
                     period is tolled. A disposition regarding a violation of
                     probation may occur after the term of probation has expired, so
                     long as the violation occurred within the original term of
                     probation. Dawson v. State, 751 N.E.2d 812, 814 (Ind. Ct. App.




2
    This date should be February 14, 2005.
3
    It is not clear to which decision or other authority this citation refers.


Court of Appeals of Indiana | Opinion 20A03-1411-PC-408 | May 11, 2015                    Page 5 of 8
                 2001). If a probationer is found to have violated probation
                 during the original term as alleged in the petition, the time
                 between the petition’s filing and its disposition extends the term
                 of probation in which the defendant may commit acts which
                 constitute further violations of her terms of probation which
                 can be used to revoke probation. Id. at 814. See also, Perry v.
                 State, 642 N.E.2d 536, 538 (Ind. Ct. App. 1994).
        41.      In the instant case, Petitioner’s probation expiration time was
                 tolled on February 4, 2009, with the filing of the Violation of
                 Probation Petition alleging that Petitioner had violated the
                 terms of her probation for nonpayment of court costs,
                 restitution, and probation user fees. At the violation hearing
                 held on March 5, 2009, Petitioner admitted the violation and
                 did not dispute the court’s figures.
        42.      While Petitioner is correct that the court never actually
                 extended her probation, it did continue to schedule review
                 hearings to provide Petitioner the opportunity to establish
                 whether she was receiving Social Security disability payments
                 in order to be in compliance with the court’s order at the
                 dispositional hearing on the violation that she pay the
                 judgement [sic] in the amount of $3,853.00 for costs, restitution
                 and user fees. These hearing [sic] were held on July 2, 2009;
                 October 29, 2009; April 8, 2010; August 5, 2010; October 14,
                 2010; January 20, 2011; February 17, 2011; April 21, 2011;
                 May 5, 2011; June 9, 2011; August 1, 2011; and January 11,
                 2012. Throughout the duration of that time, not only was
                 Petitioner still subject to the conditions of probation in the
                 instant case, she was also on probation in Cause No. 20D03-
                 0010-CF-00144. Also, during that time, Supplements to the
                 original Violation of Probation Petition were filed informing
                 the court that Petitioner had new criminal charges pending in
                 Elkhart Superior Court No. 1. Because the expiration of
                 Petitioner’s probation was tolled from the date of the Violation
                 of Probation Petition filed on February 4, 2009, she was still on
                 probation when the new criminal charges were filed.
                 Therefore, the court clearly had jurisdiction to revoke her
                 probation based on the commission of a new criminal offense
                 as Petitioner was still bound by the terms of her probation.
(App. at 62-64) (footnotes added).
Court of Appeals of Indiana | Opinion 20A03-1411-PC-408 | May 11, 2015                Page 6 of 8
[13]   Certain of the post-conviction court’s findings and conclusions were error. The

       post-conviction court found Davis’ probationary period ended on February 14,

       2009, based on evidence Davis signed the terms of her probation on February

       14, 2005, but “a defendant’s ‘probationary period’ begins immediately after

       sentencing.” Crump v. State, 740 N.E.2d 564, 568 (Ind. Ct. App. 2000), trans.

       denied. Therefore, Davis’ probationary period began when she was released

       from incarceration on February 3, 2009.


[14]   The remainder of the post-conviction court’s findings and conclusions are

       premised on the erroneous determination Davis’ probationary period began

       February 14, 2005, and ended February 14, 2009. For example, the court

       concluded Davis’ probationary period was tolled when the State filed its notice

       of violation on February 4, 2009. However, tolling does not apply to violations

       filed after the probationary period ends. See Ind. Code § 35-38-2-3(b)-(c) (when

       a notice of violation of probation is filed, the court may either order a summons

       for the defendant to appear or order a warrant for the defendant’s arrest if there

       is a risk of the person fleeing the jurisdiction or harming others; “[t]he issuance

       of a summons or warrant tolls the period of probation until the final

       determination of the charge.”). The State’s notice of violation was filed on the

       day Davis’ probation ended such that there was no period of probation to be

       tolled, which means the trial court could not continue her terms of probation

       pursuant to Ind. Code § 35-38-2-3(c).




       Court of Appeals of Indiana | Opinion 20A03-1411-PC-408 | May 11, 2015     Page 7 of 8
[15]   As the post-conviction’s findings and conclusions were contrary to law, we

       reverse the denial of post-conviction relief, which subsequently reverses the trial

       court’s revocation of probation. Therefore, Davis should not be returned to

       incarceration as part of this matter.


[16]   Reversed.


       Robb, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 20A03-1411-PC-408 | May 11, 2015     Page 8 of 8
