Angela Hokey v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 24, 2020
• Docket: 20A-CR-262
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jul 24 2020, 10:17 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE R. Patrick Magrath Curtis T. Hill, Jr. Alcorn Sage Schwartz & Magrath, LLP Attorney General of Indiana Madison, Indiana Benjamin J. Shoptaw Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Angela Hokey, July 24, 2020 Appellant/Respondent, Court of Appeals Case No. 20A-CR-262 v. Appeal from the Decatur Superior Court State of Indiana, The Hon. Matthew D. Bailey, Appellee/Petitioner. Judge Trial Court Cause Nos. 16D01-1810-F6-1309 16D01-1902-CM-203 16D01-1902-F6-173

Bradford, Chief Judge.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-262 | July 24, 2020 Page 1 of 5 Case Summary [1] Following Angela Hokey’s April of 2019 guilty pleas to several crimes in three

cause numbers, the trial court imposed 1170 days of probation. In October of

2019, the State filed a petition to revoke Hokey’s probation for, inter alia, failing

to report to the probation office for three months or notify it of an address

change, the loss of her telephone, and transportation issues. In January of

2020, Hokey admitted to violating the terms of her probation, and the trial

court ordered that she serve 600 days of her previously-suspended sentences.

Hokey contends that the trial court abused its discretion in ordering her to serve

portions of her previously-suspended sentences. Because we disagree, we

affirm.

Facts and Procedural History [2] On April 2, 2019, Hokey pled guilty to Level 6 felony methamphetamine

possession in cause number 16D01-1810-F6-1309 (“Cause No. 1309”), Class B

misdemeanor marijuana possession and Class C misdemeanor illegal

possession of paraphernalia in cause number 16D01-1902-CM-203 (“Cause No.

203”), and two counts of Level 6 felony unlawful possession of a legend drug in

cause number 16D01-1902-F6-173 (“Cause No. 173”). The trial court

sentenced Hokey to 360 days of probation in Cause No. 1309, 180 days of

probation in Cause No. 203, and 720 days of incarceration with 630 suspended

to probation in Cause No. 173 and ordered that all sentences were to be served

consecutively. Hokey began serving her probation in April of 2019.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-262 | July 24, 2020 Page 2 of 5 [3] On October 7, 2019, the State petitioned to revoke Hokey’s probation on the

bases that she had not reported to the probation office during the months of

July through September, the probation office had not been able to reach her by

telephone, she had not started her substance-abuse treatment, and she had not

performed her community service. On January 2, 2020, Hokey admitted that

she had violated the terms of her probation by failing to contact the probation

office or to notify it of an address change, change of telephone, or

transportation issues. The trial court ordered 180 days of probation revoked in

Cause No. 1309, sixty days revoked in Cause No. 203, and 360 days revoked in

Cause No. 173.

Discussion and Decision [4] Hokey argues that the trial court abused its discretion in ordering her to serve

portions of her previously-suspended sentences. “Probation is a matter of grace

left to trial court discretion, not a right to which a criminal defendant is

entitled.” Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007) (citing Sanders v.

State, 825 N.E.2d 952, 955 (Ind. Ct. App. 2005)). The Indiana Supreme Court

has held that “a trial court’s sentencing decisions for probation violations are

reviewable using the abuse of discretion standard[,]” explaining that

[o]nce a trial court has exercised its grace by ordering probation rather than incarceration, the judge should have considerable leeway in deciding how to proceed. If this discretion were not afforded to trial courts and sentences were scrutinized too severely on appeal, trial judges might be less inclined to order probation to future defendants.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-262 | July 24, 2020 Page 3 of 5 Prewitt, 878 N.E.2d at 187. An abuse of discretion occurs when a decision is

clearly against the logic and effect of the facts and circumstances. Id.

[5] Violation of a single condition of probation is sufficient to revoke probation.

Gosha v. State, 873 N.E.2d 660, 663 (Ind. Ct. App. 2007). Where a violation of

the terms of probation has been established, Indiana Code subsection 35-38-2-

3(h)(3) allows the trial court to “[o]rder execution of all or part of the sentence

that was suspended at the time of initial sentencing” and the “[c]onsideration

and imposition of any alternatives to incarceration is a ‘matter of grace’ left to

the discretion of the trial court.” Monday v. State, 671 N.E.2d 467, 469 (Ind. Ct.

App. 1996). “When reviewing an appeal from the revocation of probation, we

consider only the evidence most favorable to the judgment, and we will not

reweigh the evidence or judge the credibility of the witnesses.” Vernon v. State,

903 N.E.2d 533, 536 (Ind. Ct. App. 2009), trans denied.

[6] We conclude that the trial court did not abuse its discretion in ordering Hokey

to serve portions of her previously-suspended sentences. Hokey began serving

her probation in April of 2019 but by July had stopped contacting the probation

office and failed to do so again until September. Hokey admitted that during

the time period in question she had not informed the probation office of her

whereabouts and that the office was unable to contact her or leave a voicemail.

Hokey also acknowledged that she fully understood the terms of her probation

but “blew them off[.]” Tr. Vol. II p. 11. Hokey’s admitted violation of the

terms of her probation is sufficient to support the trial court’s revocation and

Court of Appeals of Indiana | Memorandum Decision 20A-CR-262 | July 24, 2020 Page 4 of 5 order that she serve portions of her previously-suspended sentences. See Gosha,

873 N.E.2d at 663.

[7] Hokey contends that the trial court should have accepted her testimony that she

stopped reporting to the probation officer because her van broke down, she lost

her job, she moved, and her telephone ran out of minutes. Hokey also testified

that she could not contact her probation officer because nobody would let her

use a telephone. Even if we accept that any of this would excuse Hokey’s

violations, the trial court was under no obligation to credit her testimony and

apparently did not. Hokey’s argument is nothing more than an invitation to

reweigh the evidence, which we will not do. See Vernon, 903 N.E.2d at 536.

[8] Hokey also contends that her violations were technical in nature and therefore

should not support partial revocations. Hokey cites to no authority for the

proposition that “technical” violations of the terms of probation should not be

able to support revocation, and we are aware of none. Moreover, we take issue

with Hokey’s claim that her violations were merely “technical” in nature. The

violation of terms of probation such as reporting requirements and the

requirement to update the probation office of one’s whereabouts make it much

easier for a probationer to conceal other violations, such as illegal activity.

Even if we assume that nothing like that occurred in this case, we do not think

it is accurate to characterize Hokey’s violations as merely “technical.”

[9] We affirm the judgment of the trial court.

Baker, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-262 | July 24, 2020 Page 5 of 5