Brent N. Simcox v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 23, 2017
• Docket: 52A02-1702-CR-280
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jun 23 2017, 8:52 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Cara Schaefer Wieneke Curtis T. Hill, Jr. Brooklyn, Indiana Attorney General of Indiana

Justin F. Roebel Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Brent N. Simcox, June 23, 2017 Appellant-Defendant, Court of Appeals Case No. 52A02-1702-CR-280 v. Appeal from the Miami Circuit Court State of Indiana, The Honorable Timothy P. Spahr, Appellee-Plaintiff. Judge Trial Court Cause No. 52C01-1405-FB-21

Najam, Judge.

Court of Appeals of Indiana | Memorandum Decision 52A02-1702-CR-280 | June 23, 2017 Page 1 of 4 Statement of the Case [1] Brent N. Simcox appeals the trial court’s revocation of his probation. Simcox

raises a single issue for our review, namely, whether the trial court abused its

discretion when it revoked Simcox’s probation after Simcox failed a drug test.

We affirm.

Facts and Procedural History [2] In December of 2014, Simcox pleaded guilty to burglary, as a Class B felony.

The trial court initially sentenced Simcox to eight years with two years

suspended to probation. However, after Simcox successfully completed a

purposeful incarceration program while with the Department of Correction, the

court agreed to modify Simcox’s sentence such that the remainder of his

executed time could be spent on work release and, later, home detention.

[3] About one month after his sentence was modified to home detention, Simcox

failed a drug test and tested positive for methamphetamine and buprenorphine.

Thereafter, the State filed its notice of probation violation and petition to revoke

Simcox’s placement. At an ensuing hearing, Simcox admitted to the alleged

violations. The court then revoked Simcox’s placement and ordered him to

serve one year and 300 days of his previously suspended sentence. This appeal

ensued.

Discussion and Decision [4] Simcox appeals the trial court’s revocation of his probation. As the Indiana

Supreme Court has made clear: Court of Appeals of Indiana | Memorandum Decision 52A02-1702-CR-280 | June 23, 2017 Page 2 of 4 “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) (explaining that: “Once 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.”). A probation hearing is civil in nature, and the State must prove an alleged probation violation by a preponderance of the evidence. Braxton v. State, 651 N.E.2d 268, 270 (Ind. 1995); see Ind. Code § 35-38-2-3(f) (2012). When the sufficiency of evidence is at issue, we consider only the evidence most favorable to the judgment—without regard to weight or credibility—and will affirm if “there is substantial evidence of probative value to support the trial court’s conclusion that a probationer has violated any condition of probation.” Braxton, 651 N.E.2d at 270.

Murdock v. State, 10 N.E.3d 1265, 1267 (Ind. 2014).

[5] According to Simcox, the trial court abused its discretion when it relied on one

failed drug test to revoke his probation. In particular, Simcox asserts that he

had a severe substance abuse addiction that began when he was a young teen. He also struggled with both depression and anxiety. He successfully completed the purposeful incarceration program and had no conduct violations while in the D.O.C. Upon release to community corrections, he obtained housing and stable employment; he took all the steps necessary to have his driving privileges reinstated; and he began paying down his child support arrearage while attempting to rebuild a relationship with his children.

Appellant’s Br. at 8-9.

Court of Appeals of Indiana | Memorandum Decision 52A02-1702-CR-280 | June 23, 2017 Page 3 of 4 [6] Simcox’s argument on appeal is merely a request for this court to reweigh the

evidence, which we will not do. The trial court emphasized in its decision how

quickly Simcox had committed these violations upon being placed on home

detention and Simcox’s history of three prior “unsuccessful terminations of

probation” in other matters. Tr. Vol. II at 34. Moreover, Simcox’s

characterization of his failed drug test as “a single” violation, id. at 4, is not

correct; he failed one drug test, but he failed it for two substances. In sum, we

reject Simcox’s request to reweigh the evidence and hold that the trial court’s

judgment is supported by sufficient evidence.

[7] Affirmed.

Mathias, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 52A02-1702-CR-280 | June 23, 2017 Page 4 of 4