Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of FILED
establishing the defense of res judicata, Nov 09 2012, 8:36 am
collateral estoppel, or the law of the case.
CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
SUZY ST. JOHN GREGORY F. ZOELLER
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
J.T. WHITEHEAD
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
TIMOTHY ALLISON, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1204-CR-277
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable William J. Nelson, Judge
Cause No. 49F07-1010-CM-82037
November 9, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
NAJAM, Judge
STATEMENT OF THE CASE
Timothy Allison appeals his sentence following the revocation of his probation.
On appeal, Allison asserts that his initial sentence was illegal under Indiana law. We
hold that Allison should have raised this issue on direct appeal or in a petition for post-
conviction relief, and he is barred from raising it after the revocation of his probation.
Accordingly, we affirm.
FACTS AND PROCEDURAL HISTORY
On October 27, 2010, the State charged Allison with operating a vehicle while
intoxicated, as a Class A misdemeanor, and public intoxication, as a Class B
misdemeanor. On November 9, the State added a third count, which was an additional
charge of Class A misdemeanor operating a vehicle while intoxicated.
On April 25, 2011, Allison pleaded guilty to the State’s first charge of operating a
vehicle while intoxicated. In exchange, the State dismissed the remaining two counts.
Following his guilty plea, the trial court sentenced Allison to 365 days, with thirty days
executed and 335 days suspended, and an additional 335 days probation.1 Allison did not
bring a direct appeal challenging his sentence.
On January 30, 2012, the State filed a notice of probation violation against
Allison, alleging that he had been arrested for operating a vehicle while intoxicated. The
trial court held a probation revocation hearing on March 14. Allison admitted to the
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Allison’s guilty plea has not been included in the appellate record, and it is unclear if the
sentence imposed by the trial court was pursuant to the terms of Allison’s plea agreement or an open plea.
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violation of his probation and the court revoked his probation. The court then ordered
Allison to serve 300 days in the Marion County Jail. This appeal ensued.
DISCUSSION AND DECISION
On appeal, Allison contends that his original sentence of 365 days imprisonment
with an additional 335 days probation exceeded the one-year maximum sentence for
Class A misdemeanors under Indiana law. See Ind. Code § 35-50-3-1(b) (“the combined
term of imprisonment and probation for a misdemeanor may not exceed one (1) year.”).
However, as the State correctly asserts, Allison cannot challenge his initial sentence in an
appeal from the revocation of his probation. See Appellee’s Br. at 4.
Our supreme court has foreclosed this avenue of relief to Allison. In Schlichter v.
State, 779 N.E.2d 1155, 1156-57 (Ind. 2002), the court stated:
Schlichter appeals from the trial court’s decision revoking his probation.
However, he does not challenge the trial court’s ruling. Instead, he
contends that the original sentence imposed was “illegal” . . . .
Schlichter could have challenged the permissibility of his sentence
. . . by appealing his sentence when it was imposed. Cf. Harris v. State, 749
N.E.2d 57 (Ind. Ct. App. 2001), trans. denied, 761 N.E.2d 414 (Ind. 2001)
(table). To the extent that he believed that it was imposed as a consequence
of the ineffective assistance of his trial counsel or that he had other grounds
for collateral relief, he could have challenged the sentence by filing a
petition for post-conviction relief. Cf. Smith v. State, 770 N.E.2d 290 (Ind.
2002). . . .
The court then affirmed the revocation of Schlichter’s probation. Id. at 1157; see also
Cox v. State, 850 N.E.2d 485, 490 n.1 (Ind. Ct. App. 2006) (“To the extent that Cox is
challenging his sentence initially imposed, we will not review such an argument in an
appeal from the revocation of probation.”); Crump v. State, 740 N.E.2d 564, 573 (Ind. Ct.
3
App. 2000) (holding that the defendant’s complaint about his initial sentence could not be
reviewed in an appeal from the revocation of his probation), trans. denied. The proper
procedure, if any, for Allison to have this claim heard is to file a petition for post-
conviction relief. We cannot entertain his argument in this appeal from the revocation of
his probation.
As Allison presents no other challenge to the revocation of his probation, we
affirm the trial court’s judgment in all respects.
Affirmed.
KIRSCH, J., and MAY, J., concur.
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