Opinion
24A-CR-706
09-16-2024
James Lee Mosley, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT R. Patrick Magrath Alcorn Sage Schwartz &Magrath, LLP Madison, Indiana ATTORNEY FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Steven J. Hosler Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Ripley Circuit Court Trial Court Cause No. 69C01-1702-F5-8 The Honorable Ryan J. King, Judge
ATTORNEY FOR APPELLANT R. Patrick Magrath Alcorn Sage Schwartz &Magrath, LLP Madison, Indiana
ATTORNEY FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Steven J. Hosler Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
Weissmann, Judge
[¶1] James Mosley's plea agreement called for his early release from a 6-year probationary term if he met three conditions: (1) he had served at least one of the six years of probation; (2) he had paid in full $1,870 in restitution to the victims of his offenses; and (3) he had no actual or pending probation violations. Mosley did not pay the restitution and ultimately violated his probation by committing a robbery.
[¶2] When the State petitioned to revoke Mosley's probation based on the robbery, Mosley offered a novel argument. He claimed the restitution requirement had essentially vanished and that his probation had ended after one year because he was improperly imprisoned for an earlier probation revocation that was overturned on appeal. The trial court rejected Mosley's claim and revoked his probation. We affirm.
Facts
[¶3] In 2019, Mosley pleaded guilty under a plea agreement to corrupt business influence, a Level 5 felony. He also admitted to being a habitual offender. The plea agreement specified that Mosley would be sentenced to 9 years imprisonment, with 6 years suspended to probation. As to Mosley's probation, the plea agreement provided:
Defendant shall be on reporting probation in Ripley County for 6 years following incarceration subject to the following terms:
A. Not commit a criminal act or violate any traffic law.
B. Defendant shall complete a substance abuse treatment program after incarceration. C. Any other terms and conditions of Probation as determined by the Court.
D. Probation will terminate after 365 days if: the Defendant has no violations or pending violations AND all restitution is paid to all victims listed in Paragraph F[.]
F. Restitution to:
1. [R.D.]: $200.00
2. [T.M.]: $400.00
3. [B.P.]: $220.00
4. [R.R.]: $1050.00App. Vol. II, pp. 125-26.
[¶4] Consistent with the terms of the plea agreement, the trial court imposed a 9-year sentence, with 6 years suspended to probation. The sentencing order, issued April 23, 2019, provided that "[p]er the Plea Agreement, the Defendant's probation will terminate after successful completion of 1 year of probation, without Defendant having any violations or pending violations, and after Defendant has paid restitution in full." Id. at 180. Both the plea agreement and the sentencing order also provided that, as a condition of Mosley's probation, he was prohibited from contact with one of his victims, B.P. Neither the court nor the parties knew that B.P. already had died. As of the day before sentencing, Mosley already had served or was entitled to credit for 1,089 days toward the executed portion of his sentence.
[¶5] Six months after his sentencing, Mosley wrote a letter to B.P. from prison in which he apologized to B.P. and offered to buy the car he had attempted to obtain from her during his earlier offense. B.P.'s daughter wrote back to Mosley to tell him that B.P. had died. Mosley then wrote a letter to B.P.'s daughter, who informed the Ripley County Prosecutor's Office.
[¶6] The State charged Mosley in the Ripley Superior Court with attempted invasion of privacy for writing the letter to B.P. when the no-contact order was in effect. The State also petitioned the Ripley Circuit Court to revoke Mosley's probation in this case, alleging that Mosley had violated the terms of his probation by committing the new offense. Mosley moved to dismiss the attempted invasion of privacy charge, and the Ripley Superior Court granted the motion. The Ripley Circuit Court, however, found by a preponderance of the evidence that Mosley had violated the terms of his probation through prohibited contact with B.P. The court partially revoked Mosley's probation (First Revocation), returning him to prison to serve 3 of his original 6-year probationary term.
[¶7] Mosley appealed, claiming the no-contact order was void because Indiana law does not allow a judge to prohibit a probationer's contact with a dead person. A panel of this Court agreed and ruled that the no-contact order could not support either a prosecution for attempted invasion of privacy or a probation revocation based on his commission of that offense. Mosley v. State, No. 20A-CR-2094 (Ind.Ct.App. May 21, 2021) (mem.).
[¶8] Mosley, who was serving his probation revocation sentence, was released from prison on July 20, 2021. Mosley contacted his probation officer the next day to discuss his probation status. Mosley contended that his probation ended June 18, 2021-one year after he began his probation. After conferring with the prosecutor, Mosley's probation officer told Mosley that the plea agreement and sentencing order required that he had to pay restitution before he was entitled to early release from probation. Mosley had paid nothing.
[¶9] About two months later, the probation department petitioned to revoke Mosley's probation based on his commission of Level 5 felony robbery in Jay County. Mosley pleaded guilty to the robbery in late 2021. Three days after his guilty plea, the Ripley County probation department amended its probation revocation petition to incorporate his guilty plea in the robbery prosecution.
[¶10] Mosley moved to dismiss the amended probation revocation petition, arguing that his probation ended before the robbery occurred. After a hearing, the trial court denied the motion and then denied Mosley's motion to reconsider. The court later found Mosley had violated his probation and revoked the remainder of his suspended sentence (Second Revocation). Mosley appeals that judgment.
Discussion and Decision
[¶11] Mosley contends he did not violate the terms of his probation because his probation had expired before he committed the robbery. Mosley reaches this unusual conclusion by claiming his probation automatically ended after one year, although he paid no restitution. He claims he was deprived of any opportunity to pay restitution because he was wrongfully incarcerated for the First Revocation from the beginning of his term of probation on June 18, 2020, until 13 months later when the First Revocation was reversed.
[¶12] Mosley raises a panoply of arguments, none of which hit the mark. For instance, Mosley claims that his unlawful incarceration for the First Revocation rendered impossible his performance of the restitution payment, which he believed was required within the first year of probation or he would forfeit the opportunity for early release. Mosley asserts the requirement of the restitution payment therefore must be stricken from the early release provision of the plea agreement, meaning that he was automatically entitled to release from his six-year term of probation after he had served 365 days of it without any probation violations.
[¶13] Mosley also claims the State breached its contract with him by failing to recognize his early probation release. According to Mosley, the State improperly pursued the Second Revocation, which was based on his commission of a robbery that occurred three months after his probation allegedly ended. We address Mosley's breach of contract and impossibility claims separately, rejecting both.
I. Breach of Contract
[¶14] A plea agreement is "contractual in nature" and binds the defendant, the State, and the trial court once the trial court accepts it. Rodriguez v. State, 129 N.E.3d 789, 794 (Ind. 2019). Therefore, when interpreting a plea agreement, appellate courts "are guided by contract interpretation principles." State v. Smith, 71 N.E.3d 368, 370 (Ind. 2017). A material breach of contract "is one that goes to the heart of the contract, and whether a breach is material is generally a question of fact to be decided by the trier of fact." Steve Silveus Ins. v. Goshert, 873 N.E.2d 165, 175 (Ind.Ct.App. 2007).
[¶15] Mosley does not dispute that the plea agreement, by its terms, required that he pay restitution as a condition precedent to early release from his 6-year probation sentence. He also does not dispute that he paid no restitution. Yet Mosley contends the State nonetheless breached the contract. His claim is based on the idea that he had only a one-year window at the start of his probationary period to gain early release from probation and that window closed while he was still serving the executed sentence for the improper probation revocation.
[¶16] It is true that the State and trial court agreed that Mosley's days spent in incarceration for the First Revocation should be credited to his 6-year probationary sentence. This means Mosley's first year of probation began and expired while he was incarcerated for the First Revocation.
[¶17] But Mosley's probation officer, the State, and the trial court interpreted the plea agreement differently than Mosley. They viewed the plea agreement as providing for Mosley's early release from probation at any time after he had served at least 365 days of probation and paid $1,870 in restitution so long as he had no pending or actual probation violations. The plain language of the plea agreement supports this view. App. Vol. II, p. 126 ("Probation will terminate after 365 days if: the Defendant has no violations or pending violations AND all restitution is paid ....") (emphasis in original). When Mosley appeared in court shortly after the First Revocation was reversed on appeal, the State and the trial court agreed that Mosley's probation would cease immediately upon his payment of $1,870 in restitution if he had no actual or pending probation violations.
[¶18] Thus, before and after his release from prison based on the appellate reversal of the First Revocation, Mosley effectively was given the same opportunity he would have had if the First Revocation had never occurred. Upon Mosley's release from prison, so long as he had paid restitution and had no actual or pending probation violations and had served 365 days of probation, he would be immediately released from the rest of the original 6-year term of probation.
[¶19] But after the appellate reversal temporarily unlocked the prison gates for Mosley, he paid no restitution. He then chose to commit a robbery, ending any chance of an early release from prison. Under these circumstances, the State did not breach the terms of the plea agreement. It would have released Mosley from probation at any time after his release from prison and before he committed the robbery if he had simply paid the restitution and had served 365 days of probation. The State fulfilled its obligations under the plea agreement.
[¶20] Mosley's own actions deprived him of early release. He did not pay any restitution from his sentencing in 2019 through the probation revocation hearing 4 years later. He also chose to violate his probation and end any opportunity for early release from probation by committing a new felony-a crime consistent with his lifetime of trying to take other people's property illegally.
The presentence investigation report prepared after the trial court accepted Mosley's plea agreement in 2019 reflects that Mosley, at age 59, had at least 17 misdemeanor convictions and at least 40 felony convictions, most of which were fraud or theft related. App. Vol. II, p. 144.
II. Impossibility
[¶21] Mosley's impossibility defense also is unavailing. It is an affirmative defense generally invoked when the performance of a contract becomes impossible and non-performance is excused. Wagler v. West Boggs Sewer Dist., Inc., 980 N.E.2d 363, 378 (Ind.Ct.App. 2012) (citing Dove v. Rose Acre Farms, Inc., 434 N.E.2d 931, 935-36 (Ind.Ct.App. 1982)). To prove impossibility, "one must demonstrate that performance is not merely difficult or relatively impossible, but absolutely impossible, owing to the act of God, the act of the law, or the loss or destruction of the subject-matter of the contract." Id. (internal quotations omitted).
[¶22] Mosley has failed to meet this standard. Although Mosley's incarceration for the First Revocation complicated the task of paying restitution, it did not prevent him from doing so. In other words, paying $1,870 in restitution while incarcerated was, at most, "merely difficult or relatively impossible" but not "absolutely impossible." See id. Impossibility does not excuse Mosley's failure to pay restitution nor justify striking the restitution payment requirement as a condition to his early release from probation.
Given our rejection of Mosley's impossibility defense, we do not address his related due process claim. Mosley asserts that given the impossibility of him paying restitution and the resulting cessation of his probation at one year, the trial court essentially extended his probation to require him to pay restitution. The court violated his right to due process, according to Mosley, by "fail[ing] to hold any hearing or make any inquiry into Mosley's ability to pay before extending his probation." Appellant's Br., p. 11. Our rejection of Mosley's impossibility defense means his probation did not end at one year and the trial court did not "extend" his probation.
[¶23] As the trial court did not err in finding that Mosley was on probation when he committed the robbery, we affirm the trial court's revocation of his probation.
Vaidik, J., and Foley, J., concur.