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
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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
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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).
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[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.
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