MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be                                  Apr 09 2020, 7:35 am
regarded as precedent or cited before any
court except for the purpose of establishing                                CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
the defense of res judicata, collateral                                      and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
James A. Hanson                                          Curtis T. Hill, Jr.
Fort Wayne, Indiana                                      Attorney General of Indiana

                                                         Samuel J. Dayton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Geraldine Holliday,                                      April 9, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1170
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable Wendy Davis,
Appellee-Plaintiff.                                      Judge
                                                         The Honorable Samuel R. Keirns,
                                                         Magistrate
                                                         Trial Court Cause Nos.
                                                         02D04-1808-F6-924
                                                         02D04-1812-F6-1500



Shepard, Senior Judge.



Court of Appeals of Indiana | Memorandum Decision 19A-CR-1170 |April 9, 2020                    Page 1 of 8
[1]   Geraldine Holliday and her boyfriend Richard Bullock have had a tumultuous

      relationship that has produced a collection of domestic disturbance runs, no

      contact orders, criminal charges, re-arrests, and guilty pleas. Her appeal

      contends that all of these were either void ab initio or voidable as violations of

      due process or excessive. We affirm.


                               Facts and Procedural History
[2]   On April 17, 2018, Holliday and Bullock engaged in an argument that turned

      physical and concluded with Holliday breaking a window of Bullock’s

      apartment with a brick. As a result of this incident, Holliday was charged with

      domestic battery. The court entered a pretrial no contact order (NCO) at

      Holliday’s initial hearing as a condition of her release. Holliday signed the

      NCO acknowledging that she had read and understood it and that she had

      received a copy of it. The domestic battery charge was later dismissed.


[3]   Late in the evening on the same day that Holliday was released from custody

      with regard to the brick incident, police were called to Bullock’s apartment on

      report of a disturbance. Holliday was found in the apartment, and Bullock told

      the police there was an NCO in effect. The State charged Holliday with

      invasion of privacy. Holliday pleaded guilty to the charge at her initial hearing.

      She was released, and the court entered an NCO pending sentencing, which

      Holliday acknowledged reading, understanding, and receiving. As part of

      Holliday’s sentence, the court issued an NCO for the term of her probation.

      Holliday signed a copy of this NCO, indicating she had read and understood


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1170 |April 9, 2020   Page 2 of 8
      the order and that she understood that violation of the order may cause

      additional charges to be filed against her.


[4]   As a result of the brick incident, the State also charged Holliday in a separate
                                             1
      cause with criminal mischief. Holliday pleaded guilty to this charge at her

      initial hearing, and the court entered an NCO as a condition of her release. The

      court provided Holliday with a copy of the NCO, which she signed to

      acknowledge her receipt, reading, and understanding. At Holliday’s sentencing

      hearing a month later, the court entered an NCO as a condition of her

      probation, and Holliday again acknowledged reading and understanding the

      order, as well as understanding that violating it could result in additional

      charges.


[5]   On August 1, 2018, police were dispatched to a church. When they arrived,

      they found Holliday and Bullock in the church parking lot drinking beer. The

      State charged Holliday with invasion of privacy, and an NCO was issued at her

      initial hearing. The order contains her signature indicating that she read,

      understood, and received a copy. The invasion of privacy charge was dismissed

      on August 7.




      1
        Holliday has not included a copy of any documents from this case in her appendix. Contra Ind. Appellate
      Rule 50(B)(1)(a) (stating the appellant’s appendix in a criminal appeal shall contain “the Clerk’s Record,
      including the chronological case summary[.]”). Pursuant to Indiana Evidence Rule 201, however, we have
      taken judicial notice of the records of the court below necessary to inform our decision.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1170 |April 9, 2020                     Page 3 of 8
[6]   On the same day, the State charged Holliday with Level 6 felony invasion of
                  2
      privacy in F6-924 for her violation of the NCO on August 1. At her initial

      hearing, the court issued an NCO against Holliday to remain in effect during

      the pendency of the cause. As before, she signed the order to acknowledge that

      she had read, understood, and received a copy.


[7]   In December 2018, officers were dispatched to a residence concerning a report

      of a domestic dispute. The officers made contact with Holliday who had

      slurred speech and a strong odor of alcoholic beverages. She indicated that she

      and Bullock had been drinking and had engaged in a physical altercation. She

      was charged in F6-1500 with another offense of felony invasion of privacy for

      violating the NCO issued by the court in F6-924.


[8]   In April 2019, the court held a bench trial in both F6-924 and F6-1500 and

      found Holliday guilty as charged on both counts. The court sentenced Holliday

      to one year in F6-924 and to two years suspended to probation in F6-1500.


                                                    Issues
[9]   Holliday presents at least eight issues, which we consolidate and restate as two:


                 I.       Whether Holliday was denied due process in the course of
                          the issuance of the no contact orders; and




      2
          Ind. Code § 35-46-1-15.1 (2018).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1170 |April 9, 2020   Page 4 of 8
               II.      Whether the no contact orders issued against Holliday
                        constitute excessive bail.


                                    Discussion and Decision
                                               I. Due Process
[10]   Holliday contends that the pretrial NCOs issued at her initial hearings were

       issued without due process because she had neither the assistance of counsel

       nor an opportunity to be heard. She also alleges the NCOs were issued without

       any supporting evidence. Appellant’s Br. p. 21.


[11]   At an initial hearing in a criminal case, our state requires the judicial officer to

       inform the defendant of the nature of the charge and her various rights,

       including that she has a right to counsel at no expense if she is indigent and the

       amount and conditions of bail. See Ind. Code § 35-33-7-5 (2019). Further, if a

       defendant requests counsel and is found to be indigent, the judicial officer shall

       assign counsel prior to the completion of the initial hearing. Ind. Code § 35-33-

       7-6 (2004). Included in Indiana’s statutory scheme for preliminary proceedings

       is Indiana Code section 35-33-8-3.2 (2018). This section provides that, as a

       condition of bail, the trial court may require the defendant to refrain from

       contact with an individual upon a showing of clear and convincing evidence

       that the defendant poses a risk of physical danger to another person or the

       community.


[12]   With regard to these procedures, our Supreme Court has stated that “[a]n initial

       hearing conducted under Indiana’s statutory scheme is not a critical stage of the

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1170 |April 9, 2020   Page 5 of 8
       criminal proceeding requiring the presence of counsel.” Hopper v. State, 957

       N.E.2d 613, 616-17 (Ind. 2011) (citing Benner v. State, 580 N.E.2d 210

       (Ind.1991)).


[13]   As part of the preliminary proceedings, the pretrial NCOs were entered against

       Holliday at her initial hearings. The State tendered affidavits of probable cause

       providing evidence of Holliday’s violence toward Bullock to support the

       issuance of the NCOs. The courts could well have found this evidence

       adequate to sustain entry of the pretrial NCOs under Section 35-33-8-3.2. We

       have no evidence before us that the trial courts issuing the NCOs failed to

       follow the statutory scheme with regard to any of the preliminary proceedings

       or that their actions violated Holliday’s due process under these circumstances.


[14]   Further, any concerns Holliday may have possessed remained ripe for

       objections and motions at a later date, and it appears that at the various stages

       of the proceedings Holliday had counsel who could have challenged the entry

       of the NCOs. However, at no point in the proceedings in which the NCOs

       were entered did Holliday ever challenge their entry or suggest that their entry

       violated her due process rights.


[15]   Thus, Holliday’s contentions are nothing more than an attempt to collaterally

       attack the validity of the NCOs that were issued in prior proceedings. As we

       stated, in none of those proceedings did Holliday ever object to the entry of the

       NCOs on any grounds, nor did she appeal to challenge their validity after they

       were imposed. Instead, she repeatedly and willfully disregarded the terms of


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1170 |April 9, 2020   Page 6 of 8
       the NCOs and waited until charges were brought in subsequent, separate causes

       to first assert that her rights had been violated. Consequently, she is precluded

       from challenging the validity of the NCOs.


[16]   Finally, contrary to the bulk of Holliday’s argument, we note that the right to

       interact with others is not without limitation. In Justice Jackson’s well-known

       words, the Constitution is not “a suicide pact.” Terminiello v. City of Chicago,

       337 U.S. 1, 37 (1949) (dissenting opinion). The Constitution itself takes

       account of state interest and public necessity. For example, individuals may

       interact, but an individual may not batter, stalk, harass, or intimidate another

       individual. See, e.g., Ind. Code §§ 35-42-2-1 (2018), 35-42-2-1.3 (2019), 35-45-

       10-1 (1993), 35-45-2-2 (1996), 35-45-2-1 (2019).


                               II. Excessive Bail or Punishment
[17]   Our conclusion above that Holliday’s assertions amount to an improper

       collateral attack on orders issued in prior proceedings applies equally here.

       Nonetheless, we are compelled to note, first, that Holliday claims the pretrial

       NCOs constitute excessive bail. However, as we stated above, the right to

       interact with others is not without its limits.


[18]   Second, the Indiana Constitution prohibits excessive bail. IND. CONST. art. I,

       § 16. “Bail may not be set higher than that amount reasonably required to

       assure the defendant’s appearance in court or to assure the physical safety of another

       person” if the court finds that the defendant poses a risk to the physical safety of

       another person. Ind. Code § 35-33-8-4 (b) (2017) (emphasis added). Holliday

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1170 |April 9, 2020   Page 7 of 8
       makes no showing, and we cannot rationally find, based on the facts presented

       here, that ordering her to have no contact with Bullock was excessive bail.


                                                Conclusion
[19]   We conclude Holliday was afforded due process and that her bail was not

       excessive.


[20]   Affirmed.


       Najam, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1170 |April 9, 2020   Page 8 of 8
