Andrew Machi v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: October 11, 2012
• Docket: 36A04-1203-CR-166
• Status: Unpublished

Opinion

Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of FILED Oct 11 2012, 8:28 am establishing the defense of res judicata, collateral estoppel, or the law of the CLERK of the supreme court, case. court of appeals and tax court

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

T. MICHAEL CARTER GREGORY F. ZOELLER Scottsburg, Indiana Attorney General of Indiana

NICOLE M. SCHUSTER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

ANDREW MACHI, ) ) Appellant-Defendant, ) ) vs. ) No. 36A04-1203-CR-166 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE JACKSON CIRCUIT COURT The Honorable William E. Vance, Judge Cause No. 36C01-0209-FB-35

October 11, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

BROWN, Judge Andrew Machi appeals the revocation of his probation. Machi raises one issue

which we revise and restate as whether the State timely filed its notice of violation. We

affirm.

The relevant facts follow. On June 17, 2004, Machi pled guilty to dealing in a

controlled substance as a class B felony in Jackson County, Indiana. On July 16, 2004,

the court sentenced Machi to ten years with four years suspended to probation. Machi

began serving his probation on May 24, 2007. At some point, Machi transferred his

probation to the State of California. Carrie Tormoehlen, Machi’s probation officer in

Indiana, received a notice of arrival informing her that Machi had arrived in California

for supervision.

In February 2011, Machi committed burglary and theft in Oregon, and was

convicted for these offenses on March 29, 2011. At some point, Tormoehlen had not

received a case closure notice from California and sent a request for a case closure but

did not receive a response. On October 4, 2011, Tormoehlen discovered the burglary that

Machi had committed by having a records check run through the Jackson County

Sheriff’s Department.

On October 20, 2011, the State filed a petition to revoke probation alleging that

Machi committed new criminal offenses in Oregon between February 11 and 13, 2011,

and that he was convicted on March 29, 2011. On January 18, 2012, Machi filed a

motion to dismiss probation revocation and requested dismissal “for the reason that

California as the agent for Jackson County, Indiana released [Machi] from probation on

July 16, 2008.” Appellant’s Appendix at 16.

2 On March 5, 2012, the court held a hearing, and Machi’s counsel withdrew the

motion to dismiss at the beginning of the hearing. Machi testified that he was told by a

probation officer in California that his probation was finished, but that he was informed

by the trial court that his probation would be four years and that the Interstate

Commission for Adult Offender Supervision listed the termination of supervision date as

May 24, 2011. The court revoked Machi’s probation and ordered that the suspended

sentence of four years be executed.

The issue is whether the State timely filed its notice of violation. Generally, a

probation revocation hearing is civil in nature, and the State needs to prove the alleged

violations by a preponderance of the evidence. Cox v. State, 706 N.E.2d 547, 551 (Ind.

1999), reh’g denied. We will consider all the evidence most favorable to supporting the

judgment of the trial court without reweighing that evidence or judging the credibility of

witnesses. Id. If there is substantial evidence of probative value to support the trial

court’s conclusion that a defendant has violated any terms of probation, we will affirm its

decision to revoke probation. Id. The violation of a single condition of probation is

sufficient to revoke probation. Wilson v. State, 708 N.E.2d 32, 34 (Ind. Ct. App. 1999).

The issue of compliance with notice requirements is a procedural matter to be

determined before trial by the court. Clark v. State, 958 N.E.2d 488, 491 (Ind. Ct. App.

2011) (citing Louth v. State, 705 N.E.2d 1053, 1059 (Ind. Ct. App. 1999), reh’g denied,

trans. denied). Accordingly, the determination of when the State received notice of an

alleged probation violation is left to the sound discretion of the trial court. Id. at 491-492.

Ind. Code § 35-38-2-3(a) provides:

3 The court may revoke a person’s probation if:

(1) the person has violated a condition of probation during the probationary period; and

(2) the petition to revoke probation is filed during the probationary period or before the earlier of the following:

(A) One (1) year after the termination of probation.

(B) Forty-five (45) days after the state receives notice of the violation.

(Emphases added). The forty-five-day deadline is only triggered in cases where the State

received notice of the violation less than forty-five days before the defendant’s

probationary term expired or after the term expired. Clark, 958 N.E.2d at 492.

Machi argues only that “[t]he record in this case is devoid of evidence as to

whether the State promptly presented its claim within 45 days of receiving notice of

Machi’s probation violation in Oregon.” Appellant’s Brief at 8. The State argues that

Machi’s probation officer in Indiana discovered on October 4, 2011, that Machi

committed the crimes of burglary and theft and filed a petition to revoke Machi’s

probation sixteen days later on October 20, 2011.

The record reveals that Machi’s probation officer first discovered on October 4,

2011, the February 2011 burglary that Machi had committed by having a records check

run through the Jackson County Sheriff’s Department. The State filed a petition to

revoke probation sixteen days later on October 20, 2011. Accordingly, we conclude that

the State met the requirement in Ind. Code § 35-38-2-3(a)(2)(B) that the petition to

4 revoke probation be filed before forty-five days after the State receives notice of the

violation.

For the foregoing reasons, we affirm the trial court’s revocation of Machi’s

probation.

Affirmed.

FRIEDLANDER, J., and PYLE, J., concur.