Pursuant to Ind.Appellate Rule 65(D), this 

Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of 

establishing the defense of res judicata, 

collateral estoppel, or the law of the case.

APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:

JASON R. BARTON GREGORY F. ZOELLER

New Castle, Indiana Attorney General of Indiana

LARRY D. ALLEN

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

JASON R. BARTON, )

)

Appellant-Defendant, )

)

vs. ) No. 02A05-1307-CR-355

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE ALLEN SUPERIOR COURT

The Honorable John F. Surbeck, Jr., Judge

Cause No. 02D06-1303-PC-57

April 15, 2014

MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
2

STATEMENT OF THE CASE

Appellant-Defendant, Jason R. Barton (Barton), appeals the trial court’s denial of 

his motion for immediate discharge from unlawful and illegal imprisonment. 

We affirm.

ISSUE

Barton raises one issue on appeal, which we restate as: Whether the trial court 

abused its discretion when it denied his motion. 

FACTS AND PROCEDURAL HISTORY

On January 7, 2008, the State filed an Information charging Barton with rape, a 

Class B felony, and domestic battery, a Class A misdemeanor. On November 19, 2008, a 

jury trial was conducted and Barton was found guilty as charged. On December 15, 

2008, the trial court sentenced him to an aggregate sentence of fifteen years. Barton 

appealed, challenging the sufficiency of the evidence. On August 20, 2009, we affirmed 

Barton’s conviction. See Barton v. State, No. 02A05-0901-CR-7 (Ind. Ct. App., Aug. 20, 

2009). 

On March 14, 2013, Barton filed a motion for post-conviction relief, which he 

subsequently withdrew on September 9, 2013. The following month, on April 22, 2013, 

Barton filed a motion to compel transcripts and records, which the trial court denied on 

May 14, 2013 without a hearing. On June 10, 2013, Barton filed a motion for immediate 

discharge from illegal and unlawful imprisonment. On June 24, 2013, the State 

responded to Barton’s motion. Three days later, the trial court denied Barton’s motion. 
3

Barton now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

Barton contends that the trial court abused its discretion by denying his motion for 

immediate discharge. In his appellate brief, Barton appears to argue1for his immediate 

discharge on the basis that the trial court refused to release “the transcripts of the critical 

stages of the proceedings” to aid him in preparing his motion for post-conviction relief. 

(Appellant’s Br. p. 3). Barton asserts that these transcripts would establish that his 

conviction should be vacated because (1) the probable cause affidavit, the charging 

information, and a prior CCS “are incomplete” and defective; and (2) he was not 

represented by an attorney at the probable cause hearing, the filing of the charging 

information, and the initial plea hearing. (Appellant’s Br. p. 4).

Although Barton fails to specify the exact transcripts he is seeking, the trial court’s 

order indicates that Barton requested a transcript of the probable cause hearing. In this 

regard, the trial court noted:

The “hearing” referred to by [Barton] and found in the [c]ourt’s finding of 

probable cause was in fact an ex parte review of the Affidavit of Probable 

Cause. No evidence was taken or considered beyond that contained within 

the document entitled Affidavit of Probable Cause. No independent 

recording or record was made for the reason that there was nothing to make 

of record beyond the written document entitled Affidavit of Probable 

Cause.

(Appellant’s App. p. 17).

 

1 Barton did not include his motion for immediate discharge from illegal and unlawful imprisonment in 

the Appendix. We therefore attempt to piece together its contents based on the State’s response to 

Barton’s motion, the trial court’s denial of Barton’s motion, and Barton’s appellate brief. 
4

We agree with the State that Barton’s confusion with respect to a transcript arises 

from the two different methods for the presentation of a probable cause affidavit. Indiana 

Code section 35-33-5-2 allows the filing of an affidavit, containing reliable information 

about the person to be arrested, the offense committed, and the facts constituting probable 

cause, with the trial court. In this instance, no hearing is required because the affiant 

verifies and signs the document filed before the court in an ex-parte proceeding. 

Alternatively, Indiana Code section 35-33-7-2 provides that a trial court may issue an 

arrest warrant based on sworn testimony collected in a non-adversarial, recorded hearing. 

The recorded hearing may be transcribed at the request of any party. Ind. Code § 35-33-

7-2.

Here, a sworn affidavit was filed with the trial court and no recorded hearing took 

place. See I.C. § 35-33-5-2. Therefore, as no transcript exists of the probable cause 

affidavit and charging information, we affirm the trial court’s order denying Barton’s 

motion for immediate release.

CONCLUSION

Based on the foregoing, we conclude that the trial court did not abuse its discretion 

by denying Barton’s motion for immediate discharge from illegal and unlawful 

imprisonment. 

Affirmed.

VAIDIK, C. J. and MAY, J. concur