Richard DOBESKI, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
No. 49A02-1603-CR-440
Court of Appeals of Indiana.
Dec. 12, 2016.
64 N.E.3d 1257
[35] Finally, as to Judge Miller‘s failure to disclose sua sponte his prior representation of Mathews, we note that this directive appears in a nonbinding comment to a rule, not in a rule itself. Jud. Cond. R. 2.11 cmt. [5]. However, it would seem that, as repetitive as such a disclosure might become in the case history of a serial recidivist like Mathews, disclosure is preferred.
Conclusion
[36] For these reasons, we cannot say that Judge Miller‘s denial of Mathews‘s procedurally defaulted Rule 12 motion was clearly erroneous.
[37] Affirmed.
ROBB, J., and BROWN, J., concur.
Valerie K. Boots, Indianapolis, IN, Attorney for Appellant.
ALTICE, Judge.
Case Summary
[1] Richard Dobeski appeals following his conviction for failure to register as a sex offender. Under the terms of the applicable statute, Dobeski was required to register “not more than seven (7) days after” his release from prison.
[2] We reverse and remand with instructions to vacate Dobeski‘s conviction.1
Facts & Procedural History
[3] In 2008, Dobeski was convicted of class C felony child molesting and class D felony possession of child pornography. He was sentenced to an aggregate term of eleven years. Pursuant to Indiana law, Dobeski was required to register as a sex offender upon his release from custody.
[4] Dobeski was released from New Castle Correctional Facility on July 16, 2015. A “Transportation Detail” form introduced into evidence at trial indicates that a transport van carrying Dobeski and seven other inmates left the prison at 9:30 a.m. Exhibit Volume, State‘s Ex. 5. The form indicates that the van both arrived in and departed from “Indy” at 11:15 a.m., but nevertheless managed to drop off seven inmates while there. Id. The van then travelled to Portland, Indiana, where it dropped off its last passenger at 1:30 p.m. before arriving back at the prison at 2:30
[5] A sergeant with the Marion County Sheriff‘s Office checked the sex offender database “sometime after 1:00 in the afternoon” on July 23, 2015, and found that Dobeski had not yet registered. Transcript at 10. At some point between 2:00 and 2:30 p.m. that same day, a sheriff‘s deputy located Dobeski at the Indianapolis Public Library and placed him under arrest for failure to register as a sex offender.
[6] At trial, the State argued that seven days had elapsed between Dobeski‘s release and his arrest. Specifically, the State argued that the evidence showed that Dobeski was released at 11:15 a.m. on July 16, 2015, and arrested between 2:00 and 2:30 p.m. on July 23, 2015. According to the State, the “days” referred to in the statute were twenty-four-hour periods, beginning with the moment Dobeski was released from prison. In other words, Dobeski had precisely 168 hours to register. Thus, the State argued Dobeski was in violation of the statute when he failed to register by 11:15 a.m. on July 23, 2015. Dobeski, on the other hand, argued that the statute gave him seven full calendar days to register, and that he therefore had until midnight on July 23, 2015 to do so. Consequently, Dobeski argued, his arrest was premature. The trial court ultimately accepted the State‘s argument. Dobeski now appeals.
Discussion & Decision
[7] In reviewing a challenge to the sufficiency of the evidence, we neither reweigh the evidence nor judge the credibility of witnesses. Atteberry v. State, 911 N.E.2d 601, 609 (Ind.Ct.App.2009). Instead, we consider only the evidence supporting the conviction and the reasonable inferences flowing therefrom. Id. If there is substantial evidence of probative value from which a reasonable trier of fact could have drawn the conclusion that the defendant was guilty of the crime charged beyond a reasonable doubt, the judgment will not be disturbed. Baumgartner v. State, 891 N.E.2d 1131, 1137 (Ind.Ct.App.2008).
[8] Although the issue in this case is framed as whether the evidence was sufficient to support Dobeski‘s conviction, that determination turns on our interpretation of a statute. Statutory interpretation presents a question of law that we review de novo. Nicoson v. State, 938 N.E.2d 660, 663 (Ind.2010). When faced with a question of statutory interpretation, we first examine whether the language of the statute is clear and unambiguous. City of Carmel v. Steele, 865 N.E.2d 612, 618 (Ind.2007). If it is, we need not apply any rules of construction other than to require that words and phrases be given their plain, ordinary, and usual meanings. Id. Where a statute is open to more than one interpretation, it is deemed ambiguous and subject to judicial construction. Taylor v. State, 7 N.E.3d 362, 365 (Ind.Ct.App.2014). Our primary goal in interpreting a statute is to ascertain and give effect to the legislature‘s intent, and the best evidence of that intent is the statute itself. Nicoson, 938 N.E.2d at 663. We presume that the legislature intended for the statutory language to be applied in a logical manner in harmony with the statute‘s underlying policy and goals. Brown v. State, 912 N.E.2d 881, 894 (Ind.Ct.App.2009), trans. denied. Additionally, “[t]he rule of lenity requires that penal statutes be construed strictly against the State and any ambiguities resolved in favor of the accused, . . . but statutes are not to be overly narrowed so as to exclude cases they fairly
[9]
[10] We first note that
In computing any period of time prescribed or allowed by these rules, by order of the court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed is to be included unless it is:
- (1) a Saturday,
- (2) a Sunday,
- (3) a legal holiday as defined by state statute, or
- (4) a day the office in which the act is to be done is closed during regular business hours.
In any event, the period runs until the end of the next day that is not a Saturday, a Sunday, a legal holiday, or a day on which the office is closed. When the period of time allowed is less than seven [7] days, intermediate Saturdays, Sundays, legal holidays, and days on which the office is closed shall be excluded from the computations.
[11] Although there is no comparable provision in the criminal rules, Ind.Crim. Rule 21 provides that the rules of trial procedure apply in criminal proceedings “so far as they are not in conflict with any specific rule adopted by this court for the conduct of criminal proceedings.” See also Ward v. Ind. Parole Bd., 805 N.E.2d 893, 893-94 (Ind.Ct.App.2004) (applying
[13] With respect to the State‘s argument that we should interpret “seven (7) days” to mean 168 hours from the moment of Dobeski‘s release, we note that Indiana case law has long defined a “day” as a twenty-four-hour period running from midnight to midnight. See Kirkpatrick v. King, 228 Ind. 236, 244, 91 N.E.2d 785, 789 (1950) (reasoning that “a day begins with the passing of midnight and continues until the succeeding midnight“) (quoting Moag v. State, 218 Ind. 135, 141, 31 N.E.2d 629, 632 (1941)); Benson v. Adams, 69 Ind. 353, 354 (1879) (explaining that a day “commences at 12 o‘clock P.M. and ends at 12 o‘clock P.M., running from midnight to midnight“). The State has not directed our attention to any authority supporting its argument that a “day” for the purposes of
[14] When the legislature enacted
[15] For all of these reasons, we conclude that
[16] Judgment reversed and remanded with instructions.
[17] RILEY, J. and BRADFORD, J., concur.