MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Jan 14 2016, 5:44 am
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 Tobie Wilson Gregory F. Zoeller New Castle Correctional Facility Attorney General of Indiana New Castle, Indiana Brian Reitz Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Tobie Wilson, January 14, 2016 Appellant-Defendant, Court of Appeals Case No. 24A01-1506-CR-778 v. Appeal from the Franklin Circuit Court State of Indiana, The Honorable J. Steven Cox, Appellee-Plaintiff Judge Trial Court Cause Nos. 24C01-0205-CM-263 24C01-0410-CM-750 24C01-0503-CM-130 24C01-0511-CM-996 24C01-0612-CM-791
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 24A01-1506-CR-778 | January 14, 2016 Page 1 of 6 Case Summary [1] Between 2002 and 2006, Tobie Wilson amassed seven misdemeanor
convictions under five different cause numbers. In each cause, his sentence
included probation. In 2011, the trial court issued bench warrants for each
cause due to Wilson’s failure to comply with agreed orders on rule to show
cause concerning probation. In 2015, Wilson filed motions to dismiss for
failure to prosecute, 1 each of which the trial court denied. He now appeals,
alleging certain procedural and constitutional infirmities and challenging the
trial court’s denial of his motions to dismiss. Finding that we lack subject
matter jurisdiction, we dismiss his appeal.
Facts and Procedural History [2] In 2002, Wilson pled guilty to class A misdemeanor resisting law enforcement
and class B misdemeanor public intoxication in Cause 24C01-0205-CM-263. In
2004, he pled guilty to class B misdemeanor public intoxication in Cause
24C01-0410-CM-750. A year later, he pled guilty to class C misdemeanor
taking wild animals governed by laws and rules in Cause 24C01-0503-CM-130
and was convicted of class B misdemeanor public intoxication following a
bench trial in Cause 24C01-0511-CM-996 (“Cause 996”). In 2006, in Cause
24C01-0612-CM-791, he pled guilty to jacklighting and shooting from or across
1 As discussed below, it is unclear from the record and Wilson’s brief as to whether he seeks dismissal of the bench warrants or of the underlying convictions.
Court of Appeals of Indiana | Memorandum Decision 24A01-1506-CR-778 | January 14, 2016 Page 2 of 6 a roadway/waterway, both class C misdemeanors. For each of his convictions,
the trial court suspended at least part of his sentence to probation.
[3] Between 2009 and 2011, the trial court issued orders to show cause in all five
causes due to Wilson’s failure to comply with certain probation orders. From
2010 to the present, Wilson has been incarcerated in connection with unrelated
felony convictions in another county. In 2011, the trial court issued bench
warrants in connection with its previous orders to show cause. In 2015, Wilson
filed motions to dismiss for failure to prosecute. The trial court denied the
motions, and Wilson now appeals. Additional facts will be provided as
necessary.
Discussion and Decision
Section 1 – This Court lacks subject matter jurisdiction to entertain Wilson’s challenge to the underlying convictions. [4] Wilson maintains that the trial court erred in denying his motion to dismiss for
failure to prosecute. Ordinarily, we review a trial court’s ruling on such
motions using an abuse of discretion standard. Lebo v. State, 977 N.E.2d 1031,
1035 (Ind. Ct. App. 2012). Here, however, Wilson does not make it entirely
clear as to what exactly he was seeking to dismiss, whether it be the bench
warrants on the orders to show cause or the underlying convictions themselves.
As best we can discern from his brief and the meager record, it is the latter. See,
e.g., Appellant’s Br. at 5 (Wilson’s prayer for relief stating, “The judgment of
Court of Appeals of Indiana | Memorandum Decision 24A01-1506-CR-778 | January 14, 2016 Page 3 of 6 the Trial Court should be reversed, the judgments of conviction should be
vacated and each of these cases should be dismissed with prejudice.”). As a pro
se litigant without legal training, he is held to the same standard as a licensed
attorney. Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App. 2004), trans. denied.
[5] To the extent that Wilson appears to attack the underlying convictions
themselves, we emphasize that he neither filed a timely direct appeal pursuant
to Indiana Appellate Rule 9(A) nor requested permission to file a belated appeal
under Indiana Post-Conviction Rule 2. “The timely filing of a notice of appeal
is a jurisdictional prerequisite, and failure to conform to the applicable time
limits results in forfeiture of an appeal.” Tarrance v. State, 947 N.E.2d 494, 495
(Ind. Ct. App. 2011). We also note that in four of the five causes, Wilson pled
guilty, thereby waiving his right to challenge those underlying convictions on
direct appeal. Branham v. State, 813 N.E.2d 809, 812 (Ind. Ct. App. 2004).
With respect to his guilty pleas, he never challenged the voluntariness of those
pleas either through direct appeal or post-conviction relief. As such, his
reliance on Boykin v. Alabama, 395 U.S. 238 (1969), is misplaced. 2 In short, to
the extent that he seeks relief from the underlying convictions themselves, we
lack subject matter jurisdiction.
2 Unlike this case, Boykin involved a direct appeal addressing the voluntariness of the defendant’s guilty plea, and the Supreme Court found reversible error where the record did not disclose that the defendant had “voluntarily and understandingly entered” his guilty pleas. 395 U.S. at 244. Having never raised such a challenge, Wilson now argues that his pleas were involuntary and bemoans the alleged unavailability of transcripts from guilty plea hearings held more than a decade ago. Having never availed himself of his right to challenge the voluntariness of his pleas, he may not do so in this setting.
Court of Appeals of Indiana | Memorandum Decision 24A01-1506-CR-778 | January 14, 2016 Page 4 of 6 [6] As a matter of clarification, we note that although Wilson uses the term
“dismissal,” it appears from the face of his motions that he was actually seeking
a discharge pursuant to Criminal Rule 4(C), which prohibits the State from
holding a person in pretrial custody for more than one year from the date of his
arrest or charge. 3 Wilson’s reliance on Criminal Rule 4 is misplaced because (1)
his custody is not pretrial custody; (2) he has not been held in custody in
connection with any of the five causes but rather is in custody due to felony
convictions in an unrelated cause; and (3) Criminal Rule 4 mandates discharge
for delay in criminal trials. Wilson was already afforded a criminal bench trial
in Cause 996, and he pled guilty in the remaining causes, thereby forgoing a
trial in each of those causes. Rule 4 simply does not mandate discharge in a
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Jan 14 2016, 5:44 am
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 Tobie Wilson Gregory F. Zoeller New Castle Correctional Facility Attorney General of Indiana New Castle, Indiana Brian Reitz Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Tobie Wilson, January 14, 2016 Appellant-Defendant, Court of Appeals Case No. 24A01-1506-CR-778 v. Appeal from the Franklin Circuit Court State of Indiana, The Honorable J. Steven Cox, Appellee-Plaintiff Judge Trial Court Cause Nos. 24C01-0205-CM-263 24C01-0410-CM-750 24C01-0503-CM-130 24C01-0511-CM-996 24C01-0612-CM-791
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 24A01-1506-CR-778 | January 14, 2016 Page 1 of 6 Case Summary [1] Between 2002 and 2006, Tobie Wilson amassed seven misdemeanor
convictions under five different cause numbers. In each cause, his sentence
included probation. In 2011, the trial court issued bench warrants for each
cause due to Wilson’s failure to comply with agreed orders on rule to show
cause concerning probation. In 2015, Wilson filed motions to dismiss for
failure to prosecute, 1 each of which the trial court denied. He now appeals,
alleging certain procedural and constitutional infirmities and challenging the
trial court’s denial of his motions to dismiss. Finding that we lack subject
matter jurisdiction, we dismiss his appeal.
Facts and Procedural History [2] In 2002, Wilson pled guilty to class A misdemeanor resisting law enforcement
and class B misdemeanor public intoxication in Cause 24C01-0205-CM-263. In
2004, he pled guilty to class B misdemeanor public intoxication in Cause
24C01-0410-CM-750. A year later, he pled guilty to class C misdemeanor
taking wild animals governed by laws and rules in Cause 24C01-0503-CM-130
and was convicted of class B misdemeanor public intoxication following a
bench trial in Cause 24C01-0511-CM-996 (“Cause 996”). In 2006, in Cause
24C01-0612-CM-791, he pled guilty to jacklighting and shooting from or across
1 As discussed below, it is unclear from the record and Wilson’s brief as to whether he seeks dismissal of the bench warrants or of the underlying convictions.
Court of Appeals of Indiana | Memorandum Decision 24A01-1506-CR-778 | January 14, 2016 Page 2 of 6 a roadway/waterway, both class C misdemeanors. For each of his convictions,
the trial court suspended at least part of his sentence to probation.
[3] Between 2009 and 2011, the trial court issued orders to show cause in all five
causes due to Wilson’s failure to comply with certain probation orders. From
2010 to the present, Wilson has been incarcerated in connection with unrelated
felony convictions in another county. In 2011, the trial court issued bench
warrants in connection with its previous orders to show cause. In 2015, Wilson
filed motions to dismiss for failure to prosecute. The trial court denied the
motions, and Wilson now appeals. Additional facts will be provided as
necessary.
Discussion and Decision
Section 1 – This Court lacks subject matter jurisdiction to entertain Wilson’s challenge to the underlying convictions. [4] Wilson maintains that the trial court erred in denying his motion to dismiss for
failure to prosecute. Ordinarily, we review a trial court’s ruling on such
motions using an abuse of discretion standard. Lebo v. State, 977 N.E.2d 1031,
1035 (Ind. Ct. App. 2012). Here, however, Wilson does not make it entirely
clear as to what exactly he was seeking to dismiss, whether it be the bench
warrants on the orders to show cause or the underlying convictions themselves.
As best we can discern from his brief and the meager record, it is the latter. See,
e.g., Appellant’s Br. at 5 (Wilson’s prayer for relief stating, “The judgment of
Court of Appeals of Indiana | Memorandum Decision 24A01-1506-CR-778 | January 14, 2016 Page 3 of 6 the Trial Court should be reversed, the judgments of conviction should be
vacated and each of these cases should be dismissed with prejudice.”). As a pro
se litigant without legal training, he is held to the same standard as a licensed
attorney. Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App. 2004), trans. denied.
[5] To the extent that Wilson appears to attack the underlying convictions
themselves, we emphasize that he neither filed a timely direct appeal pursuant
to Indiana Appellate Rule 9(A) nor requested permission to file a belated appeal
under Indiana Post-Conviction Rule 2. “The timely filing of a notice of appeal
is a jurisdictional prerequisite, and failure to conform to the applicable time
limits results in forfeiture of an appeal.” Tarrance v. State, 947 N.E.2d 494, 495
(Ind. Ct. App. 2011). We also note that in four of the five causes, Wilson pled
guilty, thereby waiving his right to challenge those underlying convictions on
direct appeal. Branham v. State, 813 N.E.2d 809, 812 (Ind. Ct. App. 2004).
With respect to his guilty pleas, he never challenged the voluntariness of those
pleas either through direct appeal or post-conviction relief. As such, his
reliance on Boykin v. Alabama, 395 U.S. 238 (1969), is misplaced. 2 In short, to
the extent that he seeks relief from the underlying convictions themselves, we
lack subject matter jurisdiction.
2 Unlike this case, Boykin involved a direct appeal addressing the voluntariness of the defendant’s guilty plea, and the Supreme Court found reversible error where the record did not disclose that the defendant had “voluntarily and understandingly entered” his guilty pleas. 395 U.S. at 244. Having never raised such a challenge, Wilson now argues that his pleas were involuntary and bemoans the alleged unavailability of transcripts from guilty plea hearings held more than a decade ago. Having never availed himself of his right to challenge the voluntariness of his pleas, he may not do so in this setting.
Court of Appeals of Indiana | Memorandum Decision 24A01-1506-CR-778 | January 14, 2016 Page 4 of 6 [6] As a matter of clarification, we note that although Wilson uses the term
“dismissal,” it appears from the face of his motions that he was actually seeking
a discharge pursuant to Criminal Rule 4(C), which prohibits the State from
holding a person in pretrial custody for more than one year from the date of his
arrest or charge. 3 Wilson’s reliance on Criminal Rule 4 is misplaced because (1)
his custody is not pretrial custody; (2) he has not been held in custody in
connection with any of the five causes but rather is in custody due to felony
convictions in an unrelated cause; and (3) Criminal Rule 4 mandates discharge
for delay in criminal trials. Wilson was already afforded a criminal bench trial
in Cause 996, and he pled guilty in the remaining causes, thereby forgoing a
trial in each of those causes. Rule 4 simply does not mandate discharge in a
case such as this where the defendant has been in custody due to unrelated
felony convictions and his trial has already occurred or been waived by guilty
plea. 4
3 In his five identical motions to dismiss, Wilson alleges (1) that he has been in the continuous custody of the State since 2010; (2) that the State has had ample opportunity to bring him to trial but has refused; (3) that the State’s actions have been prejudicial and have impaired his ability to prepare a proper defense; and (4) that because one year has elapsed, he is entitled to dismissal with prejudice. Appellant’s App. at 2-11. 4 We also disagree with Wilson’s characterization of the trial court’s/State’s alleged inaction as holding his sentence in abeyance in violation of his constitutional rights. He cites as authority Woods v. State, 583 N.E.2d 1211, 1212-13 (Ind. 1992), where our supreme court set aside the defendant’s executed sentence and legally discharged him because the State had delayed commencement of his sentence for over five years, after which the trial court ordered the execution of his sentence. We find Woods inapposite and note specifically that here, the trial court had imposed probation and was simply following up on Wilson’s repeated failure to comply with probation orders.
Court of Appeals of Indiana | Memorandum Decision 24A01-1506-CR-778 | January 14, 2016 Page 5 of 6 Section 2 – Wilson has failed to develop a cogent argument with respect to dismissal of the bench warrants. [7] Finally, to the extent that Wilson may have intended simply to seek dismissal of
the bench warrants on the orders to show cause, he did not develop a cogent
argument with citations to authority as required by Indiana Rule of Appellate
Procedure 46(A)(8). As a result, he has waived appellate review of any such
challenge. Jervis v. State, 28 N.E.3d 361, 368 (Ind. Ct. App. 2015), trans. denied.
[8] In sum, Wilson’s attack on his underlying convictions is not properly before us.
Consequently, we dismiss his appeal for lack of subject matter jurisdiction.
[9] Dismissed.
Vaidik, C.J., and Bailey, J., concur.
Court of Appeals of Indiana | Memorandum Decision 24A01-1506-CR-778 | January 14, 2016 Page 6 of 6