MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jun 30 2020, 8:14 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing 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 JUSTIN ATTORNEYS FOR APPELLEE
P. NORTON Curtis T. Hill, Jr.
Cara Schaefer Wieneke Attorney General
Wieneke Law Office, LLC
Brooklyn, Indiana Matthew B. Mackenzie
Deputy Attorney General
ATTORNEY FOR APPELLANT Indianapolis, Indiana
RANDALL E. MYERS
Kay A. Beehler
Terre Haute, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Justin P. Norton and Randall E. June 30, 2020
Myers, Court of Appeals Case No.
Appellants-Defendants, 19A-CR-2389
Interlocutory Appeal from the
v. Vermillion Circuit Court
The Honorable Robert M. Hall,
State of Indiana, Senior Judge
Appellee-Plaintiff The Honorable Jill D. Wesch,
Judge
Trial Court Cause Nos.
83C01-1905-F6-81
83C01-1904-F6-60
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Crone, Judge.
Case Summary
[1] Justin P. Norton and Randall E. Myers (collectively Appellants) were charged
in separate causes with level 6 felony failure to return to lawful detention. They
filed separate motions to dismiss, each one claiming that he was not in “lawful
detention,” as defined by statute. The trial court denied both motions. In this
consolidated interlocutory appeal, Appellants contend that the trial court erred
in denying their motions to dismiss. We affirm.
Facts and Procedural History
[2] The facts with respect to Norton are as follows. In April 2019, Norton was
being held in the Vermillion County Jail on charges of level 6 felony possession
of a syringe and class C misdemeanor possession of paraphernalia. At that
time, he was the subject of a hold in Vigo County in connection with a different
cause. Norton filed a motion for release on recognizance. On April 11, 2019,
the trial court issued an order granting the motion and ordering Norton’s
release from the Vermillion County Jail and his transfer to Vigo County for the
hold. The order stated that on his release from the Vigo County Jail, Norton
must enter a substance abuse rehabilitation facility, comply with all terms and
conditions of the facility, and complete the program. The order also specified,
“If at any time Defendant is discharged from the program before completion,
leaves voluntarily or submits a positive drug screen while in the rehabilitation
program, she [sic] shall report back to the Vermillion County Jail.” Appellants’
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App. Vol. 2 at 10. Norton reported to Vigo County for the hold and was
released the next day. He did not enter a rehabilitation facility and did not
report back to the Vermillion County Jail.
[3] The State charged Norton with level 6 felony failure to return to lawful
detention. Norton filed a motion to dismiss, which the trial court denied. He
sought and was granted certification of the trial court’s order for interlocutory
appeal.
[4] The facts with respect to Myers are as follows. In December 2018, the State
charged Myers with level 6 felony battery on a public safety official, class B
misdemeanor disorderly conduct, class B misdemeanor public intoxication, and
a habitual offender count. On March 5, 2019, he pled guilty to the level 6
felony battery charge. The trial court found a factual basis and took the guilty
plea under advisement. Pending sentencing, the trial court released Myers from
the Vermillion County Jail and ordered him to enroll in and complete inpatient
substance abuse treatment at the Truman House. The release order specified
that Myers’s next court date would be June 12, 2019, at 9:30 a.m. State’s Ex. 1.
The order also stated, “if you leave the Truman House for any reason you are
to immediately return to the jail.” Id. On April 9, 2019, Myers was expelled
from Truman House due to rules violations but did not return to the jail as
ordered.
[5] The State charged Myers with level 6 felony failure to return to lawful
detention. Myers filed a motion to dismiss, which the trial court denied. He
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sought and was granted certification of the trial court’s order for interlocutory
appeal. He also moved to consolidate his cause with Norton’s for purposes of
the appeal, which the trial court granted. We accepted jurisdiction of
Appellants’ consolidated interlocutory appeal. 1 Additional facts will be
provided as necessary.
Discussion and Decision
[6] Appellants contend that the trial court erred in denying their motions to
dismiss. We typically review the trial court’s ruling on a motion to dismiss for
an abuse of discretion. State v. Thakar, 82 N.E.3d 257, 259 (Ind. 2017).
However, Appellants’ arguments involve statutory interpretation and therefore
are matters of law, which we review de novo. Montgomery v. State, 14 N.E.3d
76, 78 (Ind. Ct. App. 2014). Our objective is to give effect to the intent of the
legislature. Rowe v. State, 813 N.E.2d 1232, 1234 (Ind. Ct. App. 2004), trans.
denied. “We must give words their common and ordinary meaning, while
examining the statute as a whole.” Id. “We presume the legislature intended
the language to be applied in a logical manner consistent with the statute’s
underlying policy and goals.” Id. (quoting Anglin v. State, 787 N.E.2d 1012,
1016 (Ind. Ct. App. 2003), trans. denied (2004)).
1
The State has filed a motion to strike Myers’s reply brief, which we deny in an order issued
contemporaneously with this decision.
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Appellants filed separate motions to dismiss the charge of level 6 felony failure
to return to lawful detention. Indiana Code Section 35-44.1-3-4(c) defines this
offense as follows:
A person who knowingly or intentionally fails to return to lawful
detention following temporary leave granted for a specified
purpose or limited period commits failure to return to lawful
detention, a Level 6 felony. However, the offense is a Level 5
felony if, while committing it, the person draws or uses a deadly
weapon or inflicts bodily injury on another person.
[7] Appellants contend that they did not violate the failure-to-return statute because
they were not in lawful detention as defined by Indiana Code Section 35-31.5-2-
186:
(a) “Lawful detention” means:
(1) arrest;
(2) custody following surrender in lieu of arrest;
(3) detention in a penal facility;
(4) detention in a facility for custody of persons alleged or found
to be delinquent children;
(5) detention under a law authorizing civil commitment in lieu of
criminal proceedings or authorizing such detention while
criminal proceedings are held in abeyance;
(6) detention for extradition or deportation;
(7) placement in a community corrections program’s residential
facility;
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(8) electronic monitoring;
(9) custody for purposes incident to any of the above including
transportation, medical diagnosis or treatment, court
appearances, work, or recreation; or
(10) any other detention for law enforcement purposes.
(b) Except as provided in subsection (a)(7) and (a)(8), the term
does not include supervision of a person on probation or parole
or constraint incidental to release with or without bail.
[8] There are relatively few cases interpreting these statutes. The most similar is
Rowe, 813 N.E.2d at 1233, in which another panel of this Court interpreted the
predecessor statute, which contained a list of “lawful detention” definitions
identical to the list found in subsection (a) of the current statute. Rowe was
sentenced to 180 days following his class D felony conviction for being a
habitual traffic violator. Id. He sought a stay of execution of his sentence so
that he could perform his summer construction job in other cities. Id. The trial
court agreed to suspend execution and remanded him to the custody of the
county sheriff for execution of his sentence to begin “October 1, 2001 at 9:00
a.m.” Id. On September 30, 2001, Rowe phoned the county jail and asked for
an extension, which was denied. Id. Notwithstanding, he went to work and
did not report to jail on October 1 as ordered. Id. He was convicted of failure
to return to lawful detention and challenged the sufficiency of the evidence to
support his conviction, claiming that “he was never lawfully detained after he
was sentenced and therefore there was no lawful detention to which he failed to
return.” Id. at 1234. We affirmed Rowe’s conviction, reasoning that when he
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was present before the trial court for sentencing, he was in “detention for law
enforcement purposes” under subsection (a)(10) and failed to return to lawful
detention in the county jail. Id. at 1235. 2 Thus, the Rowe court articulated that
to be convicted of failure to return to lawful detention, one must have been in
lawful detention in the first place.
[9] Here, unlike the defendant in Rowe, Norton and Myers were in the county jail
at the time they were granted temporary release. Like Rowe, they were
temporarily released for limited purposes and were subject to orders to return to
jail in certain specified circumstances (here, noncompliance with court-ordered
rehabilitation). They claim that their circumstances did not fit within the
statutory definition of lawful detention. Indiana Code Section 35-31.5-2-
186(a)(3) defines lawful detention in pertinent part as “detention in a penal
facility.” A county jail is a penal facility. Ind. Code § 35-31.5-2-232.
Nevertheless, Appellants claim that their circumstances amounted to a
constraint incidental to release with or without bail, thus placing them within
2
In interpreting the “lawful detention” statute, the Rowe court examined our earlier decision in Anglin, 787
N.E.2d at 1017, where the defendant fled the courthouse after being ordered to sit in the hall after his
sentencing hearing to await transport to the jail. He was convicted of escape and challenged the sufficiency
of evidence to support his conviction, claiming that he was not being detained for law enforcement purposes
at the time he fled the courthouse. Id. The Anglin court articulated that being in “detention for law
enforcement purposes” is not limited to circumstances in which a law enforcement officer has control of an
individual. Id. The Rowe court also cited Mesarosh v. State, 801 N.E.2d 200, 204 (Ind. Ct. App. 2004), where
a defendant who was placed under arrest asked the officer’s permission to drop off his passenger and take his
truck home before going to jail and then fled on foot after parking his truck at home. The Mesarosh court
found the evidence insufficient to support the defendant’s escape conviction but sufficient to support his
conviction for failure to return to lawful detention, reasoning that Mesarosh had been granted temporary
leave for a specific purpose of transporting his passenger and parking his truck at home and failed to return to
lawful detention. Id. at 204.
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the exception found in subsection (b). They therefore claim that the State
should have filed a petition to revoke release and failed to do so. The State was
not required to file a petition to revoke bail or release. See Ind. Code § 35-33-8-
5(d) (“The court may revoke bail or an order for release on personal
recognizance upon clear and convincing proof by the state that … while
admitted to bail the defendant … violated any condition of the defendant’s
current release order”) (emphasis added).
A. Norton
[10] Norton first focuses on the timing of his release, arguing that because it was
pretrial release, it constituted release with or without bail subject to the
constraint of entering and completing rehabilitation and therefore fell within
subsection (b)’s exception to the definition of lawful detention. On this basis,
he asserts that he was not in “lawful detention” and therefore cannot be subject
to prosecution for knowingly or intentionally failing to return to it. In making
this argument, he conflates the application of the statute defining lawful
detention with the statute that lays out the elements of the offense with which
he was charged: failure to return to lawful detention. In other words, he fails
to account for the clear language of subsection (a)(3) listing a penal facility as
lawful detention and the clear language of his release order specifying, “If at
any time Defendant is discharged from the program before completion, leaves
voluntarily or submits a positive drug screen while in the rehabilitation
program, she [sic] shall report back to the Vermillion County Jail.” Appellants’
App. Vol. 2 at 10 (emphasis added). Norton failed to comply with the order in
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two ways: first, he failed to attend and complete rehabilitation; and second, he
failed to obey the portion of the order that required him to return to the county
jail. The only aspect of Norton’s release that possibly could have been
construed as a constraint on release with or without bail would have been his
mandated enrollment in and completion of a rehabilitation program. But the
order did not end there; rather, it included an express order to return to the jail
if he failed to complete the program. Norton’s noncompliance with
rehabilitation automatically triggered his duty to return to the county jail, and a
petition to revoke was not a necessary condition precedent to filing charges for
failure to return to lawful detention.
[11] Norton also focuses his argument on the fact that the written release order did
not specify which rehabilitation facility he was required to enter. We note that
the transcript of the hearing on the motion to dismiss includes several references
indicating that Norton was to attend rehabilitation at Club Soda, but even
absent those references, we do not find a lack of specificity in the written order
to be determinative. The clear intent of the release order was that Norton was
to be in one of three places: the Vigo County Jail serving the hold, a
rehabilitation facility, or the Vermillion County Jail. Having opted out of
rehabilitation, he was under a clear, express order to return to the Vermillion
County Jail. What matters for purposes of the offense charged is not where
Norton was required to go while he was out on release but where he was prior
to release and where he was ordered to return. Because the county jail is a
penal facility, it falls within the definition of lawful detention, and his failure to
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return to it following temporary leave for a specified purpose puts him squarely
within the scope of Indiana Code Section 35-44.1-3-4(c).
B. Myers
[12] Myers’s circumstances are procedurally different in that his temporary release
from jail for a specified purpose occurred after he pled guilty to battery in
Vermillion County and before sentencing. Like Norton, his release was for the
specific purpose of completing a drug treatment program. Myers’s written
release order identified the place for his rehabilitation as the Truman House.
His order also stated, “if you leave the Truman House for any reason you are to
immediately return to the jail.” State’s Ex. 1. Myers was expressly ordered to
be in one of two places: the Truman House or the Vermillion County Jail.
Like Norton, his failure was two-fold. His expulsion from the Truman House
for rules violations amounted to a failure to comply with the terms of his
temporary release for a specific purpose, which automatically triggered the
requirement that he return immediately to the Vermillion County Jail. The
county jail being a penal facility, Myers’s failure to return to it rendered him
subject to prosecution for failure to return to lawful detention. Ind. Code § 35-
44.1-3-4(c).
[13] In sum, both Norton and Myers were being held in a penal facility, the
Vermillion County Jail, and were released for the specific purpose of
completing rehabilitation. They were not free to roam. Their noncompliance
with rehabilitation triggered in each the duty to return to lawful detention in
that same penal facility. The State was not required to file petitions to revoke
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their release as a condition precedent to filing charges against each of them for
failure to return to lawful detention. Based on the foregoing, we find no error
in the trial court’s denial of Appellants’ motions to dismiss. Consequently, we
affirm.
[14] Affirmed.
Bailey, J., and Altice, J., concur.
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