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Wednesday, February 04, 2015

Ind. Decisions - Supreme Court decides one one today, involving a Q of the tolling (suspending) of the running of a statute of limitations

In John O. Study v. State of Indiana, a 16-page, 5-0 opinion, Justice David writes [ILB BF emphasis]:

John Study was charged with four counts of robbery, six counts of criminal confinement, and one count each of pointing a firearm, resisting law enforcement, and auto theft. The State also charged Study as a Habitual Offender. These charges resulted from four different bank robberies, which occurred over a year and a half. Study argues that the charge for Class B felony robbery, relating to the March 21, 2006 robbery should be dismissed on the grounds that it was filed outside of the statute of limitations period because the statutory concealment-tolling provision was inapplicable in his case. Thus, the statute of limitations would bar any charges related to that robbery from being brought after March 21, 2011. The State argues that Study’s conduct did conceal evidence of the offense and was sufficient to toll the statute of limitations. * * *

Judge Mathias dissented on the issue of tolling the statute of limitations. Id. Judge Mathias argued that tolling only occurs by concealment “when there is a positive act performed by the defendant calculated to prevent discovery of the fact that a crime has been committed.” Id. The dissent expressly disagreed with the proposition that any act by the defendant to avoid apprehension would toll the statute of limitations. Id. at *16. [ILB: Here is the COA's 4/10/14 2-1 NFP opinion]

This Court granted Study’s petition to transfer, thereby vacating the Court of Appeals opinion. See Ind. Appellate Rule 58(A). We summarily affirm the Court of Appeals on all issues, except for the issue regarding the interpretation and application of Indiana Code § 35-41-4-2(h)(2), the statute of limitations concealment-tolling provision. See Ind. Appellate Rule 58(A)(2). * * *

Although this Court has applied the concealment-tolling provision since the statutory language was changed in 1976, we have not previously had the opportunity to specifically address what actions of the defendant are required for a court to find “concealment” sufficient to toll the statute of limitations. After being presented with this issue for the first time, we agree with Study. We hold that the trial court erred when it refused to grant Study’s motion to dismiss the March 21, 2006 robbery count because the charge was filed outside the statute of limitations, and further hold that the charge stemming from the March 21, 2006 robbery is dismissed. * * *

Indiana statutory law provides that prosecution for a Class B felony “is barred unless it is commenced: (1) within five (5) years after the commission of the offense.” Ind. Code § 35-41-4-2(a)(1) (2014). However, limited exceptions are recognized. At issue here is the concealment-tolling provision, which provides in pertinent part:

(h) The period within which a prosecution must be commenced does not include any period in which: . . . (2) the accused person conceals evidence of the offense, and evidence sufficient to charge the person with that offense is unknown to the prosecuting authority and could not have been discovered by that authority by exercise of due diligence…
Ind. Code § 35-41-4-2(h)(2) (2014) (emphasis added). Though other issues regarding the concealment-tolling provision have been addressed, the specific question of what conduct qualifies as concealing evidence of the offense has not been answered by this Court. However, a long line of Indiana precedent guides our analysis. * * *

The application of the concealment-tolling provision under Indiana Code § 35-41-4-2(h)(2) requires a positive act by the defendant that is calculated to conceal the fact that a crime has been committed. Study did not engage in any positive act calculated to conceal the fact that a robbery occurred on March 21, 2006. Therefore, the statute of limitations as to that offense was not tolled, and the charge should have been dismissed. We remand for the trial court to vacate the conviction and sentence for Count XI and dismiss the charge. Count XI resulted in a fifteen-year (15) sentence to be served consecutively to his other sentences and $10,000.00 fine. We affirm the convictions, sentences, and fines for Counts I-VIII, X, XII, and XIII. Because of the manner in which the trial court imposed concurring and consecutive sentences, the reversal of Count XI operates to decrease Study’s total sentence by fifteen (15) years and $10,000. We affirm the remaining aggregate sentence of fifty-three-and-one-half (53.5) years and $40,000 fine.

Posted by Marcia Oddi on February 4, 2015 04:06 PM
Posted to Ind. Sup.Ct. Decisions