MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      Jan 14 2016, 5:44 am

regarded as precedent or cited before any
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
Tobie Wilson                                             Gregory F. Zoeller
New Castle Correctional Facility                         Attorney General of Indiana
New Castle, Indiana
                                                         Brian Reitz
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Tobie Wilson,                                            January 14, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         24A01-1506-CR-778
        v.                                               Appeal from the Franklin Circuit
                                                         Court
State of Indiana,                                        The Honorable J. Steven Cox,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause Nos.
                                                         24C01-0205-CM-263
                                                         24C01-0410-CM-750
                                                         24C01-0503-CM-130
                                                         24C01-0511-CM-996
                                                         24C01-0612-CM-791



Crone, Judge.


Court of Appeals of Indiana | Memorandum Decision 24A01-1506-CR-778 | January 14, 2016            Page 1 of 6
                                              Case Summary
[1]   Between 2002 and 2006, Tobie Wilson amassed seven misdemeanor

      convictions under five different cause numbers. In each cause, his sentence

      included probation. In 2011, the trial court issued bench warrants for each

      cause due to Wilson’s failure to comply with agreed orders on rule to show

      cause concerning probation. In 2015, Wilson filed motions to dismiss for

      failure to prosecute, 1 each of which the trial court denied. He now appeals,

      alleging certain procedural and constitutional infirmities and challenging the

      trial court’s denial of his motions to dismiss. Finding that we lack subject

      matter jurisdiction, we dismiss his appeal.


                                Facts and Procedural History
[2]   In 2002, Wilson pled guilty to class A misdemeanor resisting law enforcement

      and class B misdemeanor public intoxication in Cause 24C01-0205-CM-263. In

      2004, he pled guilty to class B misdemeanor public intoxication in Cause

      24C01-0410-CM-750. A year later, he pled guilty to class C misdemeanor

      taking wild animals governed by laws and rules in Cause 24C01-0503-CM-130

      and was convicted of class B misdemeanor public intoxication following a

      bench trial in Cause 24C01-0511-CM-996 (“Cause 996”). In 2006, in Cause

      24C01-0612-CM-791, he pled guilty to jacklighting and shooting from or across




      1
        As discussed below, it is unclear from the record and Wilson’s brief as to whether he seeks dismissal of the
      bench warrants or of the underlying convictions.

      Court of Appeals of Indiana | Memorandum Decision 24A01-1506-CR-778 | January 14, 2016             Page 2 of 6
      a roadway/waterway, both class C misdemeanors. For each of his convictions,

      the trial court suspended at least part of his sentence to probation.


[3]   Between 2009 and 2011, the trial court issued orders to show cause in all five

      causes due to Wilson’s failure to comply with certain probation orders. From

      2010 to the present, Wilson has been incarcerated in connection with unrelated

      felony convictions in another county. In 2011, the trial court issued bench

      warrants in connection with its previous orders to show cause. In 2015, Wilson

      filed motions to dismiss for failure to prosecute. The trial court denied the

      motions, and Wilson now appeals. Additional facts will be provided as

      necessary.


                                   Discussion and Decision

      Section 1 – This Court lacks subject matter jurisdiction
         to entertain Wilson’s challenge to the underlying
                           convictions.
[4]   Wilson maintains that the trial court erred in denying his motion to dismiss for

      failure to prosecute. Ordinarily, we review a trial court’s ruling on such

      motions using an abuse of discretion standard. Lebo v. State, 977 N.E.2d 1031,

      1035 (Ind. Ct. App. 2012). Here, however, Wilson does not make it entirely

      clear as to what exactly he was seeking to dismiss, whether it be the bench

      warrants on the orders to show cause or the underlying convictions themselves.

      As best we can discern from his brief and the meager record, it is the latter. See,

      e.g., Appellant’s Br. at 5 (Wilson’s prayer for relief stating, “The judgment of


      Court of Appeals of Indiana | Memorandum Decision 24A01-1506-CR-778 | January 14, 2016   Page 3 of 6
      the Trial Court should be reversed, the judgments of conviction should be

      vacated and each of these cases should be dismissed with prejudice.”). As a pro

      se litigant without legal training, he is held to the same standard as a licensed

      attorney. Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App. 2004), trans. denied.


[5]   To the extent that Wilson appears to attack the underlying convictions

      themselves, we emphasize that he neither filed a timely direct appeal pursuant

      to Indiana Appellate Rule 9(A) nor requested permission to file a belated appeal

      under Indiana Post-Conviction Rule 2. “The timely filing of a notice of appeal

      is a jurisdictional prerequisite, and failure to conform to the applicable time

      limits results in forfeiture of an appeal.” Tarrance v. State, 947 N.E.2d 494, 495

      (Ind. Ct. App. 2011). We also note that in four of the five causes, Wilson pled

      guilty, thereby waiving his right to challenge those underlying convictions on

      direct appeal. Branham v. State, 813 N.E.2d 809, 812 (Ind. Ct. App. 2004).

      With respect to his guilty pleas, he never challenged the voluntariness of those

      pleas either through direct appeal or post-conviction relief. As such, his

      reliance on Boykin v. Alabama, 395 U.S. 238 (1969), is misplaced. 2 In short, to

      the extent that he seeks relief from the underlying convictions themselves, we

      lack subject matter jurisdiction.




      2
        Unlike this case, Boykin involved a direct appeal addressing the voluntariness of the defendant’s guilty plea,
      and the Supreme Court found reversible error where the record did not disclose that the defendant had
      “voluntarily and understandingly entered” his guilty pleas. 395 U.S. at 244. Having never raised such a
      challenge, Wilson now argues that his pleas were involuntary and bemoans the alleged unavailability of
      transcripts from guilty plea hearings held more than a decade ago. Having never availed himself of his right
      to challenge the voluntariness of his pleas, he may not do so in this setting.

      Court of Appeals of Indiana | Memorandum Decision 24A01-1506-CR-778 | January 14, 2016                Page 4 of 6
[6]   As a matter of clarification, we note that although Wilson uses the term

      “dismissal,” it appears from the face of his motions that he was actually seeking

      a discharge pursuant to Criminal Rule 4(C), which prohibits the State from

      holding a person in pretrial custody for more than one year from the date of his

      arrest or charge. 3 Wilson’s reliance on Criminal Rule 4 is misplaced because (1)

      his custody is not pretrial custody; (2) he has not been held in custody in

      connection with any of the five causes but rather is in custody due to felony

      convictions in an unrelated cause; and (3) Criminal Rule 4 mandates discharge

      for delay in criminal trials. Wilson was already afforded a criminal bench trial

      in Cause 996, and he pled guilty in the remaining causes, thereby forgoing a

      trial in each of those causes. Rule 4 simply does not mandate discharge in a

      case such as this where the defendant has been in custody due to unrelated

      felony convictions and his trial has already occurred or been waived by guilty

      plea. 4




      3
        In his five identical motions to dismiss, Wilson alleges (1) that he has been in the continuous custody of the
      State since 2010; (2) that the State has had ample opportunity to bring him to trial but has refused; (3) that the
      State’s actions have been prejudicial and have impaired his ability to prepare a proper defense; and (4) that
      because one year has elapsed, he is entitled to dismissal with prejudice. Appellant’s App. at 2-11.
      4
         We also disagree with Wilson’s characterization of the trial court’s/State’s alleged inaction as holding his
      sentence in abeyance in violation of his constitutional rights. He cites as authority Woods v. State, 583 N.E.2d
      1211, 1212-13 (Ind. 1992), where our supreme court set aside the defendant’s executed sentence and legally
      discharged him because the State had delayed commencement of his sentence for over five years, after which
      the trial court ordered the execution of his sentence. We find Woods inapposite and note specifically that
      here, the trial court had imposed probation and was simply following up on Wilson’s repeated failure to
      comply with probation orders.




      Court of Appeals of Indiana | Memorandum Decision 24A01-1506-CR-778 | January 14, 2016                Page 5 of 6
            Section 2 – Wilson has failed to develop a cogent
             argument with respect to dismissal of the bench
                               warrants.
[7]   Finally, to the extent that Wilson may have intended simply to seek dismissal of

      the bench warrants on the orders to show cause, he did not develop a cogent

      argument with citations to authority as required by Indiana Rule of Appellate

      Procedure 46(A)(8). As a result, he has waived appellate review of any such

      challenge. Jervis v. State, 28 N.E.3d 361, 368 (Ind. Ct. App. 2015), trans. denied.


[8]   In sum, Wilson’s attack on his underlying convictions is not properly before us.

      Consequently, we dismiss his appeal for lack of subject matter jurisdiction.


[9]   Dismissed.


      Vaidik, C.J., and Bailey, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 24A01-1506-CR-778 | January 14, 2016   Page 6 of 6
