MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Oct 07 2020, 8:19 am
court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE Carl McCormack Curtis T. Hill, Jr. Pendleton, Indiana Attorney General of Indiana Evan Matthew Comer Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Carl McCormack, October 7, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-778 v. Appeal from the Brown Circuit Court State of Indiana, The Honorable Mary Wertz, Judge Appellee-Plaintiff. Trial Court Cause No. 07C01-1705-F6-290
Mathias, Judge.
[1] Following a jury trial in Brown Circuit Court, Carl McCormack
(“McCormack”) was convicted of Level 6 felony receiving stolen auto parts and
determined to be an habitual offender. The trial court sentenced McCormack to
Court of Appeals of Indiana | Memorandum Decision 20A-CR-778 | October 7, 2020 Page 1 of 7 an aggregate term of four and one-half years of incarceration. McCormack
appealed, claiming that there was insufficient evidence to support his
conviction. We rejected this claim and affirmed McCormack’s convictions.
McCormack then filed a Verified Motion for Immediate Release, claiming that
the trial court lacked subject matter jurisdiction. The trial court denied this
motion, and McCormack appeals. On appeal, McCormack claims that the trial
court erred in denying his motion for immediate release because the trial court
lacked subject matter jurisdiction.
[2] We affirm.
Facts and Procedural History [3] The facts underlying McCormack’s conviction were set forth in our opinion on
McCormack’s direct appeal as follows:
[I]n May 2017, Chad Austin (“Austin”) owned a gold 2005 Ford F350 pickup truck. Austin wanted to sell the truck, so he parked it at a location where it could be seen from a nearby road. Brown County Sheriff’s Deputy Detective Brian Shrader (“Detective Shrader”) often drove by the truck on his way to work. Knowing that there had been a recent rash of thefts involving larger Ford pickup trucks, which are more easily stolen due to the design of the door lock, Detective Shrader was concerned that Austin’s truck would also be stolen.
On May 24, 2017, Detective Shrader drove by where Austin’s truck had been parked and noticed that it was no longer there. The following morning, one of Austin’s employees, who had also noticed that the truck gone, asked Austin if he had sold the truck. Austin stated that he had not, and he telephoned the police to
Court of Appeals of Indiana | Memorandum Decision 20A-CR-778 | October 7, 2020 Page 2 of 7 report the theft. Detective Shrader learned of the report that the truck had been stolen and began to investigate.
Less than an hour after the vehicle had been reported as stolen, Detective Shrader and Deputy Austin Schonfield (“Deputy Schonfield”) observed a truck matching Austin’s at property on Hoover Road in Brown County. Detective Shrader watched as McCormack and three other individuals walked back and forth from the truck. The deputies called for backup and blocked the road leaving the property with their vehicles. As the officers approached the truck, McCormack and his companions “scurried” into the nearby woods. Tr. Vol. 2, p. 117. Detective Shrader soon located McCormack hiding under a bush. Also located were Joseph Patrick (“Patrick”), Scott Snyder (“Snyder”), and Tabitha McPeek (“McPeek”). The police took McCormack and the others into custody.
The police obtained a warrant to search the property, where they located five trucks, one of which—the one McCormack had been seen near—was Austin’s stolen Ford F350. The lower portion of the truck had been spray-painted black, and the plastic covering the keyhole on the door had been punched out. The keyhole had been altered, and the mirrors, tires, and tailgate had been removed and replaced with parts from a white 2011 Ford F350 pickup truck found on the property. This white truck had been reported stolen as well, and its hood, bumpers, headlights, and doors had been removed, as had some of its interior components and engine parts. The wheels on the white F350 had been replaced with the wheels from Austin’s gold F350.
Also found on the property was a Dodge Ram pickup truck that had been reported as stolen from Kentucky. When it was stolen, the Dodge was painted green, but it had been spray-painted black when the police recovered it at the Hoover Road property. Two other vehicles, which had not been reported as stolen, were also found on the property: a red Ford F150 pickup truck, owned by Patrick, and a white 1994 Dodge Dakota. McCormack was known to drive a white Dodge Dakota, and Patrick stated that he Court of Appeals of Indiana | Memorandum Decision 20A-CR-778 | October 7, 2020 Page 3 of 7 had seen McCormack inside the white Dakota when he arrived. Inside the Dakota, the police found the white F350’s doors, seat, and plastic interior panels. A basket containing cans of spray paint was found sitting on the top of the Dakota.
In custody, McCormack told the police that he had been working on the gold F350. Patrick stated that he helped McCormack and the others “dismantle” the white F350 and Austin’s gold F350 [f]or several hours before the police arrived. Tr. Vol. 2, pp. 141, 152. McCormack’s roommate, Laura Gillespie, testified that McCormack drove a white Dodge Dakota. She also stated that both she and McCormack knew Snyder to be a car thief before the current incident. McCormack also told the police he knew that Snyder had been known to steal vehicles. Ex. Vol., State’s Ex. 63 at 2:34–2:38.
McCormack v. State, No. 19A-CR-159, 2019 WL 5198923, slip op. at 2–4 (Ind.
Ct. App. Oct. 16, 2019).
[4] The State charged McCormack with one count of Level 6 felony receiving
stolen auto parts and alleged that McCormack was an habitual offender. A
three-day jury trial began on December 14, 2018. The jury found McCormack
guilty as charged and found McCormack to be an habitual offender. The trial
court sentenced McCormack on December 19, 2018, to an aggregate term of
four and one-half years. McCormack appealed, challenging the sufficiency of
the evidence supporting his conviction. We rejected his claims and affirmed the
trial court. Id., slip op. at 4.
[5] On February 25, 2020, McCormack filed a pro se Motion for Immediate
Release, claiming that the trial court lacked subject matter jurisdiction. The trial
Court of Appeals of Indiana | Memorandum Decision 20A-CR-778 | October 7, 2020 Page 4 of 7 court denied this motion, which prompted McCormack to file a motion to
correct error on March 30, 2020. The trial court denied the motion to correct
error on April 21, 2020. McCormack now appeals. 1
Discussion and Decision [6] McCormack claims that the trial court erred in denying his motion for
immediate release. McCormack argues that he is entitled to release because his
conviction was invalid. In addressing this argument, we first note that a
collateral attack on a conviction generally must be made by way of a petition
for post-conviction relief. See Pirant v. State, 119 N.E.3d 178, 182 (Ind. Ct. App.
2019) (affirming trial court’s denial of defendant’s Trial Rule 60(B) motion to
vacate convictions because defendant was required to raise collateral challenges
through post-conviction proceedings).
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Oct 07 2020, 8:19 am
court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE Carl McCormack Curtis T. Hill, Jr. Pendleton, Indiana Attorney General of Indiana Evan Matthew Comer Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Carl McCormack, October 7, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-778 v. Appeal from the Brown Circuit Court State of Indiana, The Honorable Mary Wertz, Judge Appellee-Plaintiff. Trial Court Cause No. 07C01-1705-F6-290
Mathias, Judge.
[1] Following a jury trial in Brown Circuit Court, Carl McCormack
(“McCormack”) was convicted of Level 6 felony receiving stolen auto parts and
determined to be an habitual offender. The trial court sentenced McCormack to
Court of Appeals of Indiana | Memorandum Decision 20A-CR-778 | October 7, 2020 Page 1 of 7 an aggregate term of four and one-half years of incarceration. McCormack
appealed, claiming that there was insufficient evidence to support his
conviction. We rejected this claim and affirmed McCormack’s convictions.
McCormack then filed a Verified Motion for Immediate Release, claiming that
the trial court lacked subject matter jurisdiction. The trial court denied this
motion, and McCormack appeals. On appeal, McCormack claims that the trial
court erred in denying his motion for immediate release because the trial court
lacked subject matter jurisdiction.
[2] We affirm.
Facts and Procedural History [3] The facts underlying McCormack’s conviction were set forth in our opinion on
McCormack’s direct appeal as follows:
[I]n May 2017, Chad Austin (“Austin”) owned a gold 2005 Ford F350 pickup truck. Austin wanted to sell the truck, so he parked it at a location where it could be seen from a nearby road. Brown County Sheriff’s Deputy Detective Brian Shrader (“Detective Shrader”) often drove by the truck on his way to work. Knowing that there had been a recent rash of thefts involving larger Ford pickup trucks, which are more easily stolen due to the design of the door lock, Detective Shrader was concerned that Austin’s truck would also be stolen.
On May 24, 2017, Detective Shrader drove by where Austin’s truck had been parked and noticed that it was no longer there. The following morning, one of Austin’s employees, who had also noticed that the truck gone, asked Austin if he had sold the truck. Austin stated that he had not, and he telephoned the police to
Court of Appeals of Indiana | Memorandum Decision 20A-CR-778 | October 7, 2020 Page 2 of 7 report the theft. Detective Shrader learned of the report that the truck had been stolen and began to investigate.
Less than an hour after the vehicle had been reported as stolen, Detective Shrader and Deputy Austin Schonfield (“Deputy Schonfield”) observed a truck matching Austin’s at property on Hoover Road in Brown County. Detective Shrader watched as McCormack and three other individuals walked back and forth from the truck. The deputies called for backup and blocked the road leaving the property with their vehicles. As the officers approached the truck, McCormack and his companions “scurried” into the nearby woods. Tr. Vol. 2, p. 117. Detective Shrader soon located McCormack hiding under a bush. Also located were Joseph Patrick (“Patrick”), Scott Snyder (“Snyder”), and Tabitha McPeek (“McPeek”). The police took McCormack and the others into custody.
The police obtained a warrant to search the property, where they located five trucks, one of which—the one McCormack had been seen near—was Austin’s stolen Ford F350. The lower portion of the truck had been spray-painted black, and the plastic covering the keyhole on the door had been punched out. The keyhole had been altered, and the mirrors, tires, and tailgate had been removed and replaced with parts from a white 2011 Ford F350 pickup truck found on the property. This white truck had been reported stolen as well, and its hood, bumpers, headlights, and doors had been removed, as had some of its interior components and engine parts. The wheels on the white F350 had been replaced with the wheels from Austin’s gold F350.
Also found on the property was a Dodge Ram pickup truck that had been reported as stolen from Kentucky. When it was stolen, the Dodge was painted green, but it had been spray-painted black when the police recovered it at the Hoover Road property. Two other vehicles, which had not been reported as stolen, were also found on the property: a red Ford F150 pickup truck, owned by Patrick, and a white 1994 Dodge Dakota. McCormack was known to drive a white Dodge Dakota, and Patrick stated that he Court of Appeals of Indiana | Memorandum Decision 20A-CR-778 | October 7, 2020 Page 3 of 7 had seen McCormack inside the white Dakota when he arrived. Inside the Dakota, the police found the white F350’s doors, seat, and plastic interior panels. A basket containing cans of spray paint was found sitting on the top of the Dakota.
In custody, McCormack told the police that he had been working on the gold F350. Patrick stated that he helped McCormack and the others “dismantle” the white F350 and Austin’s gold F350 [f]or several hours before the police arrived. Tr. Vol. 2, pp. 141, 152. McCormack’s roommate, Laura Gillespie, testified that McCormack drove a white Dodge Dakota. She also stated that both she and McCormack knew Snyder to be a car thief before the current incident. McCormack also told the police he knew that Snyder had been known to steal vehicles. Ex. Vol., State’s Ex. 63 at 2:34–2:38.
McCormack v. State, No. 19A-CR-159, 2019 WL 5198923, slip op. at 2–4 (Ind.
Ct. App. Oct. 16, 2019).
[4] The State charged McCormack with one count of Level 6 felony receiving
stolen auto parts and alleged that McCormack was an habitual offender. A
three-day jury trial began on December 14, 2018. The jury found McCormack
guilty as charged and found McCormack to be an habitual offender. The trial
court sentenced McCormack on December 19, 2018, to an aggregate term of
four and one-half years. McCormack appealed, challenging the sufficiency of
the evidence supporting his conviction. We rejected his claims and affirmed the
trial court. Id., slip op. at 4.
[5] On February 25, 2020, McCormack filed a pro se Motion for Immediate
Release, claiming that the trial court lacked subject matter jurisdiction. The trial
Court of Appeals of Indiana | Memorandum Decision 20A-CR-778 | October 7, 2020 Page 4 of 7 court denied this motion, which prompted McCormack to file a motion to
correct error on March 30, 2020. The trial court denied the motion to correct
error on April 21, 2020. McCormack now appeals. 1
Discussion and Decision [6] McCormack claims that the trial court erred in denying his motion for
immediate release. McCormack argues that he is entitled to release because his
conviction was invalid. In addressing this argument, we first note that a
collateral attack on a conviction generally must be made by way of a petition
for post-conviction relief. See Pirant v. State, 119 N.E.3d 178, 182 (Ind. Ct. App.
2019) (affirming trial court’s denial of defendant’s Trial Rule 60(B) motion to
vacate convictions because defendant was required to raise collateral challenges
through post-conviction proceedings).
[7] Still, McCormack claims he is entitled to “immediate release,” which could
mean that his motion should have been treated as a petition for a writ of habeas
corpus. Pursuant to Indiana Code section 34-25.5-1-1, “[e]very person whose
liberty is restrained, under any pretense whatever, may prosecute a writ of
habeas corpus to inquire into the cause of the restraint, and shall be delivered
from the restraint if the restraint is illegal.” The purpose of the writ of habeas
corpus is to bring a person in custody before the court for inquiry into the cause
1 On May 21, 2020, McCormack filed a motion to expedite his appeal. The motions panel of this court issued an order denying this request on June 26, 2020.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-778 | October 7, 2020 Page 5 of 7 of his restraint. Martin v. State, 901 N.E.2d 645, 647 (Ind. Ct. App. 2009) (citing
Partlow v. Superintendent, Miami Corr. Facility, 756 N.E.2d 978, 980 (Ind. Ct.
App. 2001), superseded by statute on other grounds). A petitioner is entitled to
habeas corpus only if he is entitled to immediate release from unlawful custody,
and a petitioner may not file for a writ of habeas corpus to attack his conviction
or sentence. Id. Instead, “when [a petitioner] attacks the validity of his
conviction or sentence and/or does not allege that he is entitled to immediate
discharge,” he must file a petition for post-conviction relief. Id.
[8] Although McCormack’s motion claims he is entitled to immediate release, and
his motion asserts that he is not attacking the validity of his conviction, his
argument contradicts this. McCormack claims that the trial court had no
jurisdiction, that his conviction is thus void, and that he is therefore entitled to
immediate release. In other words, despite his claims to the contrary,
McCormack seeks to attack the validity of his conviction. This claim should be
presented in a petition for post-conviction relief, not a motion for “immediate
release.” But even if we consider McCormack’s argument on its merits, he would
not prevail.
[9] McCormack contends that the probable cause affidavit supporting the charges
against him was insufficient and fails to show that the crimes occurred in
Brown County, which he argues means that the trial court lacked jurisdiction.
This argument fails for several reasons. First, it is well settled that a probable
cause affidavit is used solely to obtain an arrest warrant and is not necessary to
charge a defendant. Rhoton v. State, 575 N.E.2d 1006, 1008 (Ind. Ct. App.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-778 | October 7, 2020 Page 6 of 7 1991), trans. denied. A deficiency in a probable cause affidavit is not a ground for
the dismissal of a charging information. Engram v. State, 893 N.E.2d 744, 747
(Ind. Ct. App. 2004), trans. denied. An invalid arrest does not affect a subsequent
conviction. Id. Thus, even if the probable cause affidavit in the present case was
problematic, it does not affect the validity of McCormack’s conviction.
[10] Furthermore, there was ample evidence that the crime occurred in Brown
County. As stated in our opinion in McCormack’s direct appeal, Detective
Shrader and Deputy Schonfield saw McCormack and three others at property
on Hoover Road in Brown County. This property is also where the stolen items
were located. McCormack claims that the trial court lacked jurisdiction because
the probable cause affidavit indicated that the stolen items were from
neighboring Bartholomew County and other Indiana counties. But this is beside
the point; McCormack was in possession of the stolen items in Brown County.
And even if venue could have been proper in another county, this does not
affect the subject matter jurisdiction of the Brown Circuit Court, which is a
court of general jurisdiction. See Sims v. Beamer, 757 N.E.2d 1021, 1025 (Ind. Ct.
App. 2001) (noting that a change of venue has no effect upon the trial court’s
subject matter jurisdiction); Ind. Code § 33-28-1-2(a) (providing that circuit
courts have original and concurrent jurisdiction in all criminal cases).
[11] For all of these reasons, we affirm the judgment of the trial court.
[12] Affirmed.
Bradford, C.J., and Najam, J., concur.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-778 | October 7, 2020 Page 7 of 7