Jordan v. State, 48A02–1510–CR–1846.
| Decision Date | 22 July 2016 |
| Docket Number | No. 48A02–1510–CR–1846.,48A02–1510–CR–1846. |
| Citation | 60 N.E.3d 1062 |
| Parties | David Anthony JORDAN, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff. |
| Court | Indiana Appellate Court |
Daniel K. Whitehead, Yorktown, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
, Judge.
[1] David Anthony Jordan (“Jordan”) appeals the trial court's order revoking his probation and ordering him to serve part of his previously suspended sentence. Jordan does not challenge the sufficiency of the evidence underlying his probation violation or the trial court's ruling that he serve twelve years of his previously suspended sentence. Instead, he challenges the validity of the probation itself. Specifically, he argues that: (1) the special judge did not have authority to enter the revocation order; (2) the original judge, who had previously recused himself from the case, did not have authority to place him on probation; and (3) his probation revocation counsel was ineffective because counsel failed to challenge the validity of Jordan's probation on the basis that it was imposed by the previously-recused judge. Concluding that Jordan has waived his challenges to the judges' authority and has failed to meet his burden on his ineffective assistance of counsel claim, we affirm the trial court's order revoking Jordan's probation.
[2] We affirm.
[3] The relevant procedural facts follow. On August 14, 2001, the State charged Jordan with: Count I, Class B felony burglary; Count II, Class C felony stalking; Count III, Class B misdemeanor invasion of privacy; and Count IV, Class B misdemeanor criminal mischief. The cause was assigned to Circuit Court # 3 and the Honorable Thomas Newman, Jr. (“Judge Newman”).
[4] On January 7, 2002, Jordan, pursuant to a plea agreement, pled guilty to Counts I, II, and IV in exchange for the dismissal of Count III. Thereafter, Judge Newman sentenced Jordan to concurrent terms of twenty (20) years on Count I, eight (8) years on Count II, and six (6) months on Count IV. This aggregate twenty (20) year sentence was to be served in the Department of Correction and served consecutively to two other criminal causes.2 Thereafter, Jordan filed a direct appeal and challenged the sentence imposed in this case.3 Our Court affirmed his sentence in a memorandum decision issued on December 2, 2002. See Jordan v. State, 48A05–0204–CR–148, 779 N.E.2d 984 (Ind.Ct.App. Dec. 2, 2002)
.
[5] In 2002 and then again in 2003, Jordan filed a petition for post-conviction relief, both of which he was allowed to withdraw without prejudice. He then filed an amended petition in June 2006.4 Following a hearing, Judge Newman denied Jordan's petition for post-conviction relief on January 3, 2007. Jordan appealed the denial of post-conviction relief, and we affirmed the trial court's judgment in a memorandum decision in October 2007. See Jordan v. State, 48A04–0703–PC–125, 2007 WL 3025689 (Ind.Ct.App. Oct. 18, 2007)
, trans. denied.
[6] Thereafter, between 2008 and 2011, Jordan filed numerous motions to reduce his sentence or to have it modified to run concurrently with his two other criminal causes. Judge Newman denied each of these motions.
[7] Subsequently, on January 18, 2013, Judge Newman entered an order recusing himself from Jordan's case,5 and the Honorable Dennis Carroll (“Special Judge Carroll”) accepted jurisdiction as special judge on February 20, 2013. However, despite Judge Newman's recusal, he continued to hold hearings and issue orders in this case. For example, on September 15, 2014, Judge Newman held a hearing on Jordan's April 2014 motion to modify his sentence. Judge Newman granted Jordan's motion and ordered Jordan “released from the Department of Corrections [sic] and placed in Work Release for the remainder of his sentence[,]” which was sixteen plus years. (App. 40). Additionally, on July 20, 2015, Judge Newman held a hearing on Jordan's January 2015 request to modify his sentence from work release to probation. Judge Newman granted Jordan's motion to modify his sentence and placed him on probation for the balance of his 6,126–day sentence. Jordan did not object to or otherwise challenge Judge Newman's authority to enter this order and place him on probation.
[8] Three weeks later, on August 11, 2015, the State filed a notice of probation violation, alleging that Jordan had violated his probation by: (1) committing new criminal offenses;6 (2) failing to abstain from alcohol; and (3) violating his curfew. On August 31, 2015, Judge Newman held the initial hearing on Jordan's probation violation allegations, and Jordan denied the allegations. The transcript of this hearing is not part of the record on appeal. Nevertheless, there is no indication in the record that Jordan objected to Judge Newman's authority at this hearing.
[9] On October 1, 2015, Special Judge Carroll presided over the evidentiary hearing. At the beginning of the hearing, Special Judge Carroll stated:
We are in a Circuit Division Three case that I serve as Special Judge on in 48D03–0108–CF–270. We were here last week and there was a continuance and Mr. Kopp is here again on behalf of the State of Indiana. If there are any preliminary matters we can take care of those, otherwise we can get on with the evidence ... So are we ready to move forward?
). Jordan's counsel responded, “Yes, Your Honor.” (Tr. 5 ). Jordan did not object to the validity of the probation or the allegations. Nor did he object to Special Judge Carroll's authority to preside over the probation proceeding.
[10] During the hearing, the State questioned Jordan's probation officer, Tony New (“Probation Officer New”), about Jordan's alleged violations. The State also had Probation Officer New explain the procedural anomaly that had occurred in the case. Specifically, Probation Officer New testified that, in July 2015, Judge Newman held a hearing and placed Jordan on probation even though Special Judge Carroll was the presiding judge over the case. Probation Officer New testified that “[a]s it turn[ed] out[,] Judge Carroll was actually the Special Judge ... on the case at that time” but that apparently “[n]obody recalled that that had changed at some point before that.” (Tr. 43
–44 ). When the State asked Probation Officer New, “But [Jordan's case] ha[d] a 48D03 cause number and for whatever reason nobody realized that Judge Carroll had jurisdiction over this case and not Judge Newman?”, he replied that he “didn't realize it.” (Tr. 44 ). Jordan still did not object to the validity of the probation or Special Judge Carroll's authority to preside over the probation proceeding.
[11] Special Judge Carroll determined that Jordan had violated his probation by committing another crime (battery, criminal confinement, and interference with the reporting of a crime), and he ordered Jordan to serve twelve (12) years of his previously suspended sentence. Jordan now appeals.
[12] Jordan does not challenge the sufficiency of the evidence that he violated probation or the trial court's ruling that he serve twelve years of his previously suspended sentence. Instead, he challenges the validity of the trial court's revocation order and the validity of the existence of his probation. Specifically, he argues that: (1) Special Judge Carroll did not have authority to enter the revocation order; (2) Judge Newman, who had previously recused from the case, did not have authority to modify his sentence and place him on probation; and (3) his probation revocation counsel was ineffective for failing to challenge the validity of his probation. We will address each argument in turn.
[13] We first address Jordan's main challenge to the revocation of his probation. He contends that Special Judge Carroll did not have authority to hold a probation evidentiary hearing and to enter an order ruling that he had violated his probation because Special Judge Carroll “relinquished jurisdiction and Judge Newman [had] reassumed case jurisdiction.” (Jordan's Br. 7).
[14] The State argues that Jordan has waived appellate review of any challenge to Special Judge Carroll's authority to hold the revocation hearing and to enter the probation revocation order because Jordan “raised no objection whatsoever to Judge Carroll presiding over the probation revocation hearing.” (State's Br. 11). We agree.
[15] Our Indiana Supreme Court has explained that “[t]he proper inquiry for a reviewing court when faced with a challenge to the authority and jurisdiction of a court officer to enter a final appealable order is first to ascertain whether the challenge was properly made in the trial court so as to preserve the issue for appeal.” Floyd v. State, 650 N.E.2d 28, 32 (Ind.1994)
. The Floyd Court also explained that “it has been the long-standing policy of this court to view the authority of the officer appointed to try a case not as affecting the jurisdiction of the court.” Id. “Therefore, the failure of a party to object at trial to the authority of a court officer to enter a final appealable order waives the issue for appeal.” Id.
[16] Here, Jordan did not object at the probation revocation evidentiary hearing to Special Judge Carroll's authority to preside over the hearing or to enter an order in the proceeding. Accordingly, Jordan has waived review of any challenge to the authority of Special Judge Carroll to preside over and enter an order in this probation revocation proceeding. See, e.g., Floyd, 650 N.E.2d at 32
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