Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      Aug 12 2013, 6:59 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:

MARTIN MENDOZA                                      GREGORY F. ZOELLER
Plainfield, Indiana                                 Attorney General of Indiana

                                                    JUSTIN F. ROEBEL
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

MARTIN MENDOZA                                      )
                                                    )
       Appellant,                                   )
                                                    )
               vs.                                  )      No. 49A04-1302-CR-68
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee.                                    )


             APPEAL FROM THE SUPERIOR COURT OF MARION COUNTY
                         The Honorable Jose Salinas, Judge
                        Cause No. 49G14-0803-FD-060715



                                         August 12, 2013


                MEMORANDUM DECISION – NOT FOR PUBLICATION


MATHIAS, Judge

       Martin Mendoza (“Mendoza”), appearing pro se, appeals the Marion Superior

Court’s denial of his motion for return of property. He argues that the trial court erred by
summarily denying his motion without a hearing after his property was seized during an

arrest but not returned following the final disposition of his prior criminal case.

       We reverse and remand.

                              Facts and Procedural History

       On March 16, 2008, Mendoza was arrested after Indianapolis Metropolitan Police

Department (“IMPD”) Officers Mark Howard (“Howard”) and Nathan Challis

(“Challis”) were dispatched to a White Castle, where Mendoza had been disrupting

business by harassing customers for one and one-half to two hours. Upon their arrival,

Officer Howard noticed that Mendoza’s eyes were bloodshot and that he had a strong

odor of alcohol about his person. Officer Howard asked Mendoza to stand up, and

Mendoza struggled to stand on his own.

       Officer Howard placed Mendoza under arrest for public intoxication, and escorted

Mendoza outside. When Officer Howard and Mendoza reached the officers’ patrol

vehicle, Officer Challis proceeded to pat down Mendoza pursuant to the arrest. Officer

Challis found a clear white baggie containing a white powdery substance in Mendoza’s

right front pants pocket, and immediately suspected that the substance was cocaine.

Officer Howard agreed with Officer Challis’s observation and also placed Mendoza

under arrest for possession of cocaine.

       Officer Howard informed Mendoza of his arrest for public intoxication and for

possession of cocaine, at which time Mendoza began to threaten the officers. Mendoza

stated that if he were arrested, that he and the Mendozas would “take care of [the

officers]” and that the officers would be “f***ed up.” Appellant’s App. p. 34. Mendoza

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also stated that he would “take care of” the officers’ families. Id. When Mendoza

continued to verbally threaten the officers, Officer Howard placed him under arrest for

intimidation. Officers Howard and Challis also found $658.00 in cash on Mendoza’s

person, and seized the money and the cocaine to be transported to the IMPD property

room to be held while Mendoza’s case was pending.

        On April 22, 2008, Mendoza’s case came to a final disposition when the court

accepted his guilty plea for Class D felony possession of cocaine and Class D felony

intimidation.      The Marion County prosecutor dropped a third charge of public

intoxication as part of the plea bargain. Mendoza was sentenced to 270 days home

detention, with 38 days credit time.1

        On November 15, 2012, Mendoza filed a motion for return of property in order to

obtain the $658 seized during his 2008 arrest. The trial court summarily denied his

motion on November 20, 2012. The completed clerk’s record shows no formal judgment

or order entered on the motion. On December 7, 2012, Mendoza filed a motion to correct

error, which was denied on January 4, 2013.

        Although the trial court ruled on the motion to correct error on January 4, 2013,

the ruling was not recorded in the Chronological Case Summary (“CCS”) until January 7,

2013. Mendoza filed a motion for ruling on January 16, 2013, at which point the CCS

listed the actual date of the January 4, 2013 ruling. Mendoza then filed a notice of appeal

on February 6, 2013.


1
 Mendoza’s appeal is sent from the Plainfield Correctional Facility, where he is currently incarcerated on
other charges.
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                                I. Jurisdictional Question

       We initially address the State’s cross-appeal because it deals with this court’s

jurisdiction to address Mendoza’s claim. In its cross-appeal, the State contends that this

court lacks jurisdiction because Mendoza’s notice of appeal was filed more than thirty

days after the trial court issued its ruling on his motion to correct error. The State is

correct that Mendoza has filed his notice of appeal more than thirty days after the trial

court ruled on his motion; however, that is not the dispositive time period in this appeal.

       The Indiana Rules of Appellate Procedure prescribes the procedure for filing the

notice of appeal. “[I]f any party files a timely motion to correct error, a Notice of Appeal

must be filed within thirty (30) days after the court’s ruling on such motion is noted in the

[CCS].” App. Rule 9(a)(1). Therefore, because the CCS failed to record the trial court’s

ruling until January 7, 2013, the thirty-day filing period began to run on that date, rather

than January 4. February 6, 2013 was the thirtieth day following the CCS’s entry of the

court’s ruling on the motion to correct error, and thus Mendoza’s appeal, filed on

February 6, was timely. Because Mendoza’s appeal is, in fact, timely, this court has

jurisdiction over his appeal.

                      II. Denial of Motion for Return of Property

       Our standard of review for matters decided without a jury, including summary

denials of motions, is well settled. This court will reverse a trial court’s denial of a

motion for return of property only upon a showing that the court’s denial was clearly

erroneous and cannot be sustained on any legal theory supported by the evidence.

Williams v. State, 952 N.E.2d 317, 319 (Ind. Ct. App. 2011) (citing Merlington v. State,

                                             4
839 N.E.2d 260, 262 (Ind. Ct. App. 2005)). That said, statutes relating to search and

seizure must be strictly construed, “in favor of the constitutional right of the people.” Id.

(quoting Wallace v. State, 199 Ind. 317, 327, 157 N.E.2d 657, 660 (Ind. 1927)). Finally,

it is the court’s duty and within its jurisdiction to return seized property once the court’s

need for the property has been terminated. Id. (citing Sinn v. State, 693 N.E.2d 78, 81

(Ind. Ct. App. 1998)).

       When a defendant’s criminal case reaches its final disposition, (s)he becomes

entitled to the return of any property seized from her or his possession in the absence of a

showing that it was stolen or could not otherwise be legally possessed. Conn v. State,

496 N.E.2d 604, 608 (Ind. Ct. App. 1986). Even if the circumstances of the seizure are

perfectly lawful, a defendant retains a protectable property interest in the seized materials.

Id.

       Indiana Code section 35-33-5-5 governs the process of returning property seized

as evidence to its rightful owner. Following the final disposition of a case, the rightful

owner of property that may be lawfully possessed is to be notified to take possession of

the property, and if the owner is unknown, law enforcement are required to make a

reasonable attempt to ascertain ownership. Ind. Code § 35-33-5-5. After ninety days

from the time that the law enforcement agency either notifies the rightful owner or makes

a reasonable attempt to ascertain ownership of the property, the law enforcement agency

is authorized to dispose of the property. Id.

       Mendoza has established a prima facie claim for the $658 taken from his person at

the time of his arrest. When a person has possession of cash at the time of his arrest, it is

                                                5
presumed that he is the owner of that cash. Merlington, 839 N.E.2d at 263 (citing Poxon

v. State, 514 N.E.2d 652, 654). Here, as in Merlington, the State produced no evidence,

nor did it allege that the money did not rightfully belong to Mendoza, because there was

no hearing or pleading in the record by which the State could have introduced such

evidence. The record lacks any indication that Mendoza was properly notified to take

possession of the property following the disposition of his case.

       The final disposition in this case occurred on April 22, 2008, when the trial court

accepted Mendoza’s guilty plea. Under Indiana Code 35-33-5-5, IMPD then had a duty

to notify the rightful owner to take possession of the seized $658. Although there may

well have been an attempt by law enforcement to notify Mendoza, as the State alleges in

its brief, the record lacks any notice to the court or other admissible proof that such an

effort took place, and the trial court issued no official order or findings of fact with its

denial. In addition to the lack of any proof of adequate notice, there is no finding based

on admissible evidence that Mendoza could not lawfully possess the property under the

State forfeiture statutes, or that Mendoza somehow failed to file his motion properly.

       Without a hearing and findings based on admissible evidence, the trial court was

without authority to deny Mendoza’s motion for return of property. We therefore reverse

and remand for proceedings consistent with this opinion.

       Reversed and remanded.

NAJAM, J., and BROWN, J., concur.




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