State of Indiana v. Thomas Dale Mozee (mem. dec.)
10A04-1610-CR-2336
| Ind. Ct. App. | Apr 28, 2017Background
- In 2006 the State charged Thomas Dale Mozee with invasion of privacy (Class A misdemeanor); he pled and received a one-year sentence with approximately 4.5 months suspended to strict probation.
- Mozee was released to probation on December 1, 2006.
- Mozee missed multiple probation appointments and failed to report in December 2006–January 2007.
- The State filed a petition to revoke probation and obtained a warrant on March 19, 2007; Mozee was not arrested on the warrant until August 10, 2016.
- On September 16, 2016 the trial court dismissed the revocation proceeding, citing the long delay between the alleged violations and the arrest.
- The State appealed; the Court of Appeals reversed, holding the issuance of the warrant tolled the probationary period and the trial court erred by dismissing before resolving the petition to revoke.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the long delay between alleged probation violations and arrest barred revocation | The State: issuance of a warrant tolls the probation period, so revocation may proceed despite delay | Mozee: delay between violations and arrest justified dismissal of revocation | Reversed trial court; warrant tolls probation until final determination, so dismissal was error |
| Whether issuance of a warrant tolls the probation period | The State: statutory tolling under IC § 35-38-2-3(c) allows revocation after original term | Mozee: tolling does not rescue the State from undue delay defenses | Court: statute tolls probation from issuance of warrant until final determination, enabling revocation |
| Standard of review with no appellee brief | State: appellant may establish prima facie error given appellee's failure to brief | Mozee: (no brief filed) | Court applies less stringent review and may reverse on prima facie error |
| Whether defendant’s failure to report affects tolling | The State: defendant’s noncontact supports tolling and effort to evade probation | Mozee: delay still prejudicial | Court: failure to report and warrant issuance tolled period; prosecution may proceed |
Key Cases Cited
- Wharton v. State, 42 N.E.3d 539 (Ind. Ct. App. 2015) (appellate review when appellee does not file a brief; prima facie error standard)
- Trammell v. State, 45 N.E.3d 1212 (Ind. Ct. App. 2015) (purpose of tolling statute is to allow revocation after original probation term expires)
- Mumford v. State, 651 N.E.2d 1176 (Ind. Ct. App. 1995) (warrant issuance prevents probationer from evading revocation during suspended sentence term)
- Alley v. State, 556 N.E.2d 15 (Ind. Ct. App. 1990) (discussing the State’s ability to revoke probation post-sentence when probationer flees jurisdiction)