Michael Dominique v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 28, 2015
• Docket: 34A05-1403-CR-127
• Status: Published

Opinion

MEMORANDUM DECISION May 28 2015, 9:56 am 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 establishing the defense of res judicata, collateral estoppel, or the law of the case.

APPELLANT PRO SE ATTORNEYS FOR APPELLEE Michael Dominique Gregory F. Zoeller Westville, Indiana Attorney General of Indiana Ellen H. Meilaender Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Michael Dominique, May 28, 2015

Appellant-Defendant, Court of Appeals Case No. 34A05-1403-CR-127 v. Appeal from the Howard Superior Court State of Indiana, The Honorable Brant J. Parry, Judge Cause No. 34D02-0810-FD-201 Appellee-Plaintiff.

Kirsch, Judge.

Court of Appeals of Indiana | Memorandum Decision 34A05-1403-CR-127 |May 28, 2015 Page 1 of 5 [1] Following his guilty plea and sentencing for receiving stolen property 1 as a

Class D felony, Michael Dominique filed a motion for relief from judgment,

contending that his prior conviction for theft in another county barred his

subsequent conviction for receiving stolen property. Dominique appeals the

trial court’s denial of his motion for relief from judgment.

[2] We affirm.

Facts and Procedural History [3] In 2008, the State charged Dominique with receiving stolen property as a Class

D felony, alleging that Dominique had knowingly or intentionally received,

retained, or disposed of property belonging to Cory Floor that had been the

subject of theft. Dominique was incarcerated in the Hamilton County Jail at

the time and filed several pro se motions, which the trial court refused to rule

upon until Dominique was in the custody of Howard County. In June 2010,

Dominique was arrested and was in the custody of Howard County. At that

time, counsel was appointed to represent Dominique in this matter.

[4] Dominique entered into a plea agreement, in which he pleaded guilty to Class

D felony receiving stolen property in exchange for a sentence of eighteen

months with six months executed and the balance suspended to probation. In

1 See Ind. Code § 35-43-4-2(b). We note that, effective July 1, 2014, a new version of this criminal statute was enacted. Because Dominique committed his crime prior to July 1, 2014, we will apply the statute in effect at the time he committed his crime.

Court of Appeals of Indiana | Memorandum Decision 34A05-1403-CR-127 |May 28, 2015 Page 2 of 5 March 2011, the trial court accepted the guilty plea, and Dominque was

sentenced. In April 2011, an amended sentencing order was entered, wherein

Dominique was sentenced to thirty-two months, all suspended except for time

served.

[5] On February 6, 2014, Dominique, pro se, filed a “Motion to Vacate Unlawful

Judgment,” alleging that his conviction was unlawful due to several reasons:

(1) the conviction violated double jeopardy because it was an illegal successive

prosecution as Dominique had previously been convicted of theft of the same

property in Hamilton County; (2) his Criminal Rule 4 rights had been violated;

and (3) his trial counsel was ineffective for failing to contact Dominique and for

entering a guilty plea without Dominique’s knowledge or approval. Appellant’s

App. at 12-16. The trial court denied the motion. Dominque now appeals.

Discussion and Decision [6] Dominique argues that the trial court erred in denying his motion to vacate his

conviction. He first contends that his conviction should have been vacated

because the conviction violated double jeopardy due to the fact he had already

been convicted of theft of the same property in Hamilton County before being

convicted of receiving stolen property in Howard County. Dominique next

asserts that his conviction should have been vacated because his speedy trial

right was violated when the trial court ignored his repeated requests for a

speedy trial. He also alleges that his trial counsel was ineffective for failing to

keep him informed of the case, for not pursuing his previously-filed pro se

Court of Appeals of Indiana | Memorandum Decision 34A05-1403-CR-127 |May 28, 2015 Page 3 of 5 motion to dismiss, and for permitting him to plead guilty to a charge that

violated double jeopardy.

[7] In its brief, the State contends that the trial court properly denied Dominique’s

motion to vacate his conviction as there is “no mechanism to challenge a

criminal conviction through a ‘motion to vacate judgment.’” Appellee’s Br. at 5.

The State argues that Dominique’s motion appears to be the equivalent of a

Trial Rule 60(B) motion seeking relief from judgment, which may not be used

to challenge a criminal conviction. The State, therefore, asserts that the proper

vehicle for Dominique to challenge the validity of his conviction was a petition

for post-conviction relief. We agree.

[8] In Van Meter v. State, 650 N.E.2d 1138 (Ind. 1995), a case where a criminal

defendant attempted to challenge his conviction through a Trial Rule 60(B)

motion for relief from judgment, our Supreme Court, noting that the Indiana

Trial Rules generally only apply to civil cases, stated that criminal defendants

may not circumvent the rules governing post-conviction relief proceedings “by

seeking remedies under the civil law.” Id. at 1138. The Court went on to hold

that the defendant was “required” to raise any collateral challenges to his

convictions through post-conviction procedures. Id. at 1139; see also Ind. Post-

Conviction Rule 1(1)(b) (this rule “comprehends and takes the place of all other

common law, statutory, or other remedies heretofore available for challenging

the validity of the conviction or sentence and it shall be used exclusively in

place of them”).

Court of Appeals of Indiana | Memorandum Decision 34A05-1403-CR-127 |May 28, 2015 Page 4 of 5 [9] This same reasoning should apply to Dominique. He was required to file a

petition for post-conviction relief in order to challenge his conviction, rather

than a motion for relief from judgment. The trial court properly denied

Dominque’s motion because it was an improper attempt to challenge his

criminal conviction. Additionally, Dominque’s motion does not meet the

requirements to be deemed a petition for post-conviction relief. It was not

verified as required and did not substantially comply with the standard form

contained in the post-conviction rules. See P-C.R. 1(2); P-C.R. 1(3)(a), (b). We,

therefore, conclude that the trial court properly denied Dominque’s motion and

affirm the trial court’s denial, without prejudice to Dominique’s ability to file a

petition for post-conviction relief if he wishes to do so.

[10] Affirmed.

Vaidik, C.J., and Bradford, J., concur.

Court of Appeals of Indiana | Memorandum Decision 34A05-1403-CR-127 |May 28, 2015 Page 5 of 5