Abbott v. State
| Decision Date | 08 March 2013 |
| Docket Number | No. 33A01–1201–CR–16.,33A01–1201–CR–16. |
| Citation | 984 N.E.2d 725 |
| Parties | Andrew ABBOTT, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from the Henry Circuit Court; The Honorable Bob A. Witham, Judge; Cause Nos. 33C03–1109–FD–245, 33D02–1105–FD–132.
John T. Wilson, Anderson, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Monika Prekopa Talbot, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Andrew Abbott appeals his conviction for receiving stolen property as a class D felony.1 Abbott raises three issues, which we revise and restate as:
I. Whether the court committed fundamental error in permitting the State to refile the charge against him;
II. Whether the evidence is sufficient to support his conviction; and
III. Whether the trial court erred in denying pre-trial detention credit. We affirm in part, reverse in part, and remand.
In August 2010, Matt Huffman, a real estate agent, was hired to help sell a house owned by the father of Mike McKown. Huffman initially placed a key to the house in a realtor lock box. At some point in November 2010, Huffman made a copy of the key in the lock box, placed one of the keys without a tag back in the lock box, and gave the other key with a tag on it to Mike McKown so that he could have access to the house. McKown placed the key in his truck, which he parked at his house near the north side of New Castle, Indiana, and near State Road 3.
A short time after midnight on December 28, 2010, Nancy Weesner, who lived along State Road 3 outside the city limits of and to the north of New Castle, Indiana, observed Abbott outside her home on the other side of State Road 3 who “periodically would stop and turn around and look the opposite way, like maybe someone was going to come and get him.” Transcript at 65. Weesner observed that Abbott walked around the house across the street a couple of times, stood behind some bushes at an adjacent property, walked around the garage a couple of times, and eventually “just laid down on the ground and there was snow on the ground.” Id. Weesner called the police and described her observations.
Henry County Deputy Sheriff Landon J. Dean arrived at the location and Deputy Sheriff Jordan Pruett eventually joined him in searching the area. The officers observed footprints in the snow which led around a residence and garage, located Abbott “against the garage and/or bushes” or “leaning up against the garage,” and observed a baseball bat on the ground next to Abbott. Id at 94. The officers conducted a pat down search of Abbott and discovered a “labeled key,” which had a tag attached to it which contained the address of the house owned by McKown's father, and a yellow Stanley tape measure. Id. at 83. The officers arrested Abbott. The police contacted the owner of the residence where Abbott was arrested, and the owner did not personally know Abbott and had not given him permission to be on the property.
On December 29, 2010, McKown met at his father's house with police, Huffman, and McKown's property manager. McKown and Huffman opened the lock box and observed that the key was still in the box. McKown and his property manager searched the house to make sure that everything was still there. McKown's truck was parked at his residence and so he traveled to his home to check the truck for the key. McKown noticed that the truck, which he had not locked, “had been opened,” that “[t]here was some paperwork laying on the floor of the truck,” that he did not see his garage door opener or boat keys, and that a yellow tape measure was missing. Id. at 112. McKown later identified the key with the tag and the yellow tape measure discovered in Abbott's possession as belonging to him. At some point, Abbott sent a letter to McKown stating that he had found the key in a Walmart parking lot and had planned to return the key to the address on the key.
On May 18, 2011, the State charged Abbott with receiving stolen property as a class D felony and with being an habitual offender under cause number 33D02–1105–FD–132 (“Cause No. 132”). Specifically, the information alleged that Abbott “did knowingly retain the property, to-wit: one (1) house key of another person, to-wit: Mike McKown, said property having been the subject of a theft, to-wit: said property having been removed from a realtors key box, without the authorization of Mike McKown.” Appellant's Appendix at 5. An entry in the chronological case summary (“CCS”) on May 23, 2011, indicates that a jury trial was scheduled for August 17, 2011.
On August 17, 2011, the State filed a motion to amend information providing that it desired to change the wording from “said property having been removed from a realtors key box” to the wording “said property having been removed from his vehicle.” Id. at 12. The court heard arguments on the motion and found that the State's requested amendment appeared to be “more than just kind of a minor change” and that the change “certainly could affect the defendant's ability to be prepared to proceed with trial today.” August 17, 2011 Transcript at 13. The court asked the State if it wished for the court to dismiss the case without prejudice and to refile the case or for the court to grant the motion to amend and grant a continuance to the defense in order to prepare for the trial. Abbott did not object. After a recess, the State asked the court to dismiss the case without prejudice, and the court granted the motion to dismiss.
On September 7, 2011, the State filed a charging information under cause number 33C03–1109–FD–245 (“Cause No. 245”), alleging that Abbott committed the offense of receiving stolen property as a class D felony and was an habitual offender. Specifically, the information alleged that Abbott “did knowingly retain the property, to-wit: one (1) house key of another person, to-wit: Mike McKown, said property having been the subject of a theft, in that said property had been removed from his truck, a 1997 burgundy Chevy truck, without the authorization of Mike McKown.” Appellant's Appendix at 26. A jury trial was held on November 16, 2011, and the jury found Abbott guilty of receiving stolen property as a class D felony.
Abbott admitted to two prior felony convictions, and the court found him to be an habitual offender. The court sentenced Abbott to two and one-half years for the conviction for receiving stolen property as a class D felony and enhanced the sentence by three and one-half years for being an habitual offender, to be served in the Department of Correction (“DOC”). The court ordered Abbott's sentence under Cause No. 245 to be served consecutively to his sentence under cause number 33C01–0005–CF–12 (“Cause No. 12”). The court then stated:
I will show, at this point, that the three hundred and fifty-one (351) actual days credit will be eligible to be applied towards any parole revocation in the Circuit Court case.[ 2] If it turns out that the [DOC] does not allow that credit against the parole violation, then I certainly would, upon request of the parties or Mr. Abbott himself, show that he would be entitled to [351] actual days credit against service in this sentence, but that's only if the [DOC] does not award credit against the parole violation.
November 16, 2011 Transcript at 175. The abstract of judgment provides: “Credit time of 351 actual days to be applied to [Cause No. 12].” Appellant's Appendix at 37.
On May 30, 2012, Abbott, pro se, filed a handwritten letter with the trial court stating that “on or around 2/14/2012 the parole board choose [sic] to void my parole violation warrant,” that “[f]or whatever reason, which I am very grateful, the board didn't give me anymore time,” and that “[i]n light of these events, I am respectfully requesting that my jail time credit of 351 [days] be allowed to apply to my current committment?” Id. at 48–49. Abbott, pro se, filed another letter on June 11, 2012, requesting an amended abstract of judgment showing the credit time applied under Cause No. 245. The State filed a response stating that Abbott “has provided no proof to establish what he states in his letter.” Id. at 53. The trial court denied Abbott's request. Upon Abbott's request, this court agreed that Cause No. 132 and Cause No. 245 would be consolidated for appeal.
The first issue is whether the court committed fundamental error in permitting the State to refile the charge against Abbott. Abbott argues that the court's decision to permit the State to dismiss the charge under Cause No. 132 and refile the charge under Cause No. 245 substantially prejudiced his rights. Abbott argues that “[i]f the State, after the Court's ruling, could not have prevailed at trial, Abbott's jeopardy rights are affected by allowing the State to have another bite at the apple” and that “[i]f the State may circumvent an adverse ruling by simply dismissing and re-filing the original charge, defendant's [sic] will as a practical matter be unable to avail themselves of legitimate procedural rights.” Appellant's Brief at 15. The State maintains that the court did not commit fundamental error when it allowed the State to dismiss and subsequently refile the charge against Abbott, that Abbott's substantial rights were not affected and jeopardy had not yet attached, that Abbott failed to show that his speedy trial rights were affected by the dismissal and refiling of the charges, that contrary to Abbott's argument the State did not receive an adverse ruling to its motion to amend, and that Abbott “has not shown that he was prejudiced by the solution the State chose and that he did not ultimately receive a fair trial.” Appellee's Brief at 14.
A prosecuting attorney may obtain a dismissal at any time prior to sentencing, and the granting of such a motion does not by itself bar a subsequent trial of the defendant...
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