Mason v. State, 1181S330

• Decision Date: 30 September 1982
• Docket Number: No. 1181S330,1181S330
• Citation: 440 N.E.2d 457
• Parties: John Michael MASON, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 457

440 N.E.2d 457

John Michael MASON, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 1181S330.

Supreme Court of Indiana.

Sept. 30, 1982.

Merle B. Rose, Cronin & Rose, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Lee Cloyd, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

The defendant, John Michael Mason, was convicted of burglary, two counts of rape, criminal deviate conduct, and robbery, and was sentenced to a term of forty years' imprisonment on September 8, 1981. He expressly told the trial court at that time that he desired to initiate an appeal and pauper counsel was appointed for him. Subsequently, in January of 1982, defendant was transported to Kay County, Oklahoma pursuant to the Uniform Agreement on Detainers to be tried on charges in that state. His appeal on the instant charges was timely perfected in March, 1982.

However, on April 22, 1982, defendant escaped from the Oklahoma jail and was later arrested in Texas. He is now being held in Houston, Texas pursuant to other charges. Pending our consideration of defendant's appeal, the state has filed a motion to dismiss the appeal and affirm the conviction.

It is well settled in this state that where the defendant in a criminal case escapes from lawful custody he is not entitled during the period he is a fugitive to prosecute his appeal. Lewis v. State, (1978) 268 Ind. 398, 375 N.E.2d 1102; Irvin v. State, (1957) 236 Ind. 384, 139 N.E.2d 898, cert. denied, (1957) 353 U.S. 948, 77 S.Ct. 827, 1 L.Ed.2d 857; Kirkman v. State, (1953) 232 Ind. 563, 114 N.E.2d 878; Doren v. State, (1914) 181 Ind. 314, 104 N.E. 500; Sargent v. State, (1884) 96 Ind. 63. The reason for this rule was explained by the Court in Sargent v. State, supra :

"[W]e are convinced that it is no part of our duty, as an appellate court, to entertain the appeal of the defendant, Sargent, in this case, and review the decision and orders or rulings, of which he complains, while he is at large as an escaped convict. In the language of Chief Justice WAITE, in Smith v. United States, 94 U.S. 97 we may say, in the case in hand, of the defendant, Sargent: 'If we affirm the judgment, he is not likely to appear to submit to his sentence. If we reverse it and order a new trial, he will appear or not, as he may consider most for his interest. Under such circumstances, we are not inclined to hear and decide what may prove to be only a moot case.' " Id. 96 Ind. at 66.

This rule regarding attempted appeals by fugitives has been uniformly followed in cases decided by the United States Supreme Court and the federal courts of appeals. In fact, it has been determined by the United States Supreme Court that a defendant is not denied due process when a state court dismisses an appeal on the ground that the appellant has escaped and become a fugitive from justice. National Union of Marine Cooks and Stewards v. Arnold, (1954) 348 U.S. 37, 75 S.Ct. 92, 99 L.Ed. 46; Allen v. Georgia, (1897) 166 U.S. 138, 17 S.Ct. 525, 41 L.Ed. 949. See also Molinaro v. New Jersey, (1970) 396 U.S. 365, 90 S.Ct. 498, 24 L.Ed.2d 586, and cases cited therein. The federal courts of appeals often tentatively dismiss the appeal and give the defendant thirty days in which to return to custody and make himself subject to the judgment of the court. The dismissal becomes final if the defendant has not returned to the jurisdiction of the court within the allotted time. Van Blaricom v. Forscht, (5th Cir. 1974) 490 F.2d 461; United States v. Swigart, (10th Cir. 1973) 490 F.2d 914; United States v. Tremont, (1st Cir. 1971) 438 F.2d 1202. However, this Court has always chosen to give final dismissals rather than tentative dismissals.

In Kirkman v. State, supra, this Court determined that a criminal defendant who was incarcerated in another state was not subject to the jurisdiction of the courts of this state for the purposes of determining his appeal. In dismissing Kirkman's appeal, we stated:

"Pending appeal, appellant escaped from the Indiana Reformatory and subsequently absented himself from this State. It appears that he is now in custody of law enforcement officers of another State, being charged with the commission of new crimes and offenses allegedly committed subsequent to his escape here.

"Where the appellant in a criminal case absents himself from the custody of the State and from its jurisdiction, and becomes a fugitive from justice, he cannot prosecute his appeal. Doren v. State (1914), 181 Ind. 314, 104 N.E. 500.

"The mere fact that he has been captured and is held in another State cannot alter the above rule."...