Peter T. Dvorak v. State of Indiana
2017 Ind. App. LEXIS 208
| Ind. Ct. App. | 2017Background
- In June 2015 the State charged Peter T. Dvorak with two Class C felonies for offering/selling an unregistered security and acting as an unregistered agent based on agreements dated July 9, 2007.
- The information alleged Dvorak structured the promissory note and loan agreement to mature on July 9, 2010, and alleged this structure concealed the offenses from the victim and the State until a complaint on September 1, 2011.
- Dvorak moved to dismiss as time-barred under the five-year statute of limitations, arguing no "positive act" of concealment was alleged and the registrability status was publicly discoverable in 2007.
- The State argued the maturity date and nondisclosure tolled the limitations period because those features prevented discovery of the offenses until 2010–2011.
- The trial court denied dismissal, finding Dvorak’s structuring of the security was a positive act calculated to conceal the crime and certified the order for interlocutory appeal.
- The Court of Appeals reviewed whether the concealment tolling exception applied and whether the information sufficiently pleaded a positive act of concealment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether statute of limitations tolled by defendant's concealment | Structuring the security to mature later and failing to disclose registration status were positive acts that concealed the offense, tolling limitations | No positive act concealed the fact of an offense; registrability was publicly discoverable in 2007 so limitations ran from commission date | Reversed: no allegation of a positive act calculated to conceal that an offense occurred, so tolling did not apply |
Key Cases Cited
- Study v. State, 24 N.E.3d 947 (Ind. 2015) (construes concealment tolling: requires positive acts calculated to conceal existence of the offense)
- Kifer v. State, 740 N.E.2d 586 (Ind. Ct. App. 2000) (alteration/disposal of incriminating property conceals guilt, not the fact a crime occurred)
- State v. Chrzan, 693 N.E.2d 566 (Ind. Ct. App. 1998) (manipulation of financial records held to be positive acts that concealed a financial offense)
- Manns v. Skolnik, 666 N.E.2d 1236 (Ind. Ct. App. 1996) (failure to disclose registration status can be a material omission in securities context, but not necessarily a positive act for tolling)