Pursuant to Ind. Appellate Rule 65(D), Oct 22 2013, 5:29 am 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.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE: GILDA W. CAVINESS GREGORY F. ZOELLER Caviness Law Office, LLC Attorney General of Indiana Rushville, Indiana CYNTHIA L. PLOUGHE Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
BRIAN K. MOORE, ) ) Appellant-Defendant, ) ) vs. ) No. 73A01-1301-CR-40 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE SHELBY CIRCUIT COURT The Honorable Charles D. O’Connor, Special Judge Cause No. 73D01-1001-FC-7
October 22, 2013 MEMORANDUM DECISION – NOT FOR PUBLICATION
MATHIAS, Judge Brian Moore (“Moore”) pleaded guilty in Shelby Superior Court to Class C felony
trafficking with an inmate and was sentenced to four years with two years to be served in
the Indiana Department of Correction and two years suspended. The State subsequently
filed a petition to revoke Moore’s probation. The trial court found by a preponderance of
the evidence that Moore violated the terms of his probation and ordered that the
suspended sentence be executed. Moore appeals and argues that there was insufficient
evidence for the trial court to revoke his probation and that Indiana’s probation statutes
are too vague or ambiguous to provide adequate notice to Moore of his required conduct.
We affirm.
Facts and Procedural History
On April 7, 2010, Moore pleaded guilty to Class C felony trafficking with an
inmate. On May 5, 2010, Moore was sentenced to four years, with two years to be served
in the Indiana Department of Correction and two years suspended. Appellant's Appendix
p. 31. Moore was placed on probation for two years. During the sentencing hearing, the
trial court informed Moore of the terms of his probation. The first term was that Moore
was ordered not to commit another crime. Sentencing Tr. p. 25.
On March 2, 2012, the State filed a petition to revoke probation alleging that
Moore’s whereabouts were unknown. Moore appeared at the March 14, 2012 revocation
hearing, and testified that he had never been released from incarceration. He was
currently being held in Shelby County for new charges, and “caught a new case” while he
was incarcerated. Probation Tr. p. 4. The petition was dismissed.
2 On September 17, 2012, the State filed a second petition to revoke probation
alleging that Moore had been charged with Class A felony dealing in cocaine “on or
about the 4th day of February, 2012.” Appellant’s App. p. 46. During the November 8,
2012 fact finding hearing, the State introduced copies of Moore’s guilty plea and
sentencing order for the Class A felony dealing in cocaine charge. The trial court
revoked Moore’s probation and ordered Moore to serve his previously suspended
sentence with the Department of Correction. Appellant’s App. p. 56.
Discussion and Decision
The trial court’s decision to revoke probation is reviewed for an abuse of
discretion. Rosa v. State, 832 N.E.2d 1119, 1121 (Ind. Ct. App. 2005). “An abuse of
discretion occurs if the decision is against the logic and effect of the facts and
circumstances before the court.” Id. Under Indiana Code section 35-38-2-3(a), a court
may revoke probation if a person violates a condition of probation during the
probationary period. In addition, under Indiana Code section 35-38-2-1(b), the court may
revoke probation if a probationer commits any additional crime.
I. Insufficient Evidence
Moore argues that there was insufficient evidence for the trial court to revoke his
probation. When the sufficiency of evidence is challenged, we will neither “reweigh the
evidence nor reassess witness credibility.” Whatley v. State, 847 N.E.2d 1007, 1010 (Ind.
Ct. App. 2006) (citing Marsh v. State, 818 N.E.2d 143, 148 (Ind. Ct. App. 2004)). Rather,
we look to the evidence most favorable to the State and affirm the judgment if “there is
substantial evidence of probative value supporting revocation.” Id. We are also
3 reminded that the State’s burden of proof regarding alleged probation violations is proof
by a preponderance of the evidence. Id.
On February 4, 2012, while on probation for his trafficking offense, Moore
committed another crime by dealing cocaine. He pleaded guilty to this offense.
Therefore, there is sufficient evidence that Moore violated the terms of his probation. As
previously noted, a “violation of a single condition of probation is sufficient to permit a
trial court to revoke probation.” Rosa v. State, 832 N.E.2d 1119, 1121 (Ind. Ct. App.
2005); see also Smith v. State, 727 N.E.2d 763, 766 (Ind. Ct. App. 2000); Brooks v. State,
692 N.E.2d 951, 953-54 (Ind. Ct. App. 1998).
Moore argues that because he did not receive a written copy of the terms, he did
not receive sufficient notice of the terms of his probation. In Braxton v. State, 651
N.E.2d 268, 270 (Ind. 1995) the Indiana Supreme Court held that, “The law of this state
is well-established that although a trial court must specify the conditions of probation in
the record, it is always a condition of probation that a probationer not commit an
additional crime.” (Internal citations omitted). During the May 5, 2010 sentencing
hearing Moore admitted that he had been placed on probation several times in the past.
Sentencing Tr. pp. 15-16. The trial court explicitly told Moore that the first term of his
probation was that he was not to commit any other crimes. Id at 25.
Given that the trial court directly told Moore that commission of another crime
would violate his probation, and given that Moore had been placed on probation several
times in the past, Moore had sufficient notice that commission of a crime was a probation
4 violation. Under these facts and circumstances, the trial court’s revocation of Moore’s
probation is supported by sufficient evidence.
II. Adequate Notice
Moore argues that Indiana Code Sections 35-38-2-3(a), 35-38-2-2.3, and 35-38-2-
1 are too vague or ambiguous to provide adequate notice to Moore of his required
conduct. “A criminal statute may be invalidated for vagueness for either of two
independent reasons: (1) for failing to provide notice enabling ordinary people to
understand the conduct that it prohibits, and (2) for the possibility that it authorizes or
encourages arbitrary or discriminatory enforcement.” Brown v. State, 868 N.E. 2d 464,
467 (Ind. 2007). (citation omitted). The statute need only inform the individual of the
generally proscribed conduct; a statute need not list with itemized exactitude each item of
conduct prohibited. State v. Downey, 476 N.E.2d 121, 122 (Ind. 1985) (citation omitted).
Indiana Code Section 35-38-2-3(a) dictates when a trial court may revoke
probation:
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Pursuant to Ind. Appellate Rule 65(D), Oct 22 2013, 5:29 am 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.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE: GILDA W. CAVINESS GREGORY F. ZOELLER Caviness Law Office, LLC Attorney General of Indiana Rushville, Indiana CYNTHIA L. PLOUGHE Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
BRIAN K. MOORE, ) ) Appellant-Defendant, ) ) vs. ) No. 73A01-1301-CR-40 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE SHELBY CIRCUIT COURT The Honorable Charles D. O’Connor, Special Judge Cause No. 73D01-1001-FC-7
October 22, 2013 MEMORANDUM DECISION – NOT FOR PUBLICATION
MATHIAS, Judge Brian Moore (“Moore”) pleaded guilty in Shelby Superior Court to Class C felony
trafficking with an inmate and was sentenced to four years with two years to be served in
the Indiana Department of Correction and two years suspended. The State subsequently
filed a petition to revoke Moore’s probation. The trial court found by a preponderance of
the evidence that Moore violated the terms of his probation and ordered that the
suspended sentence be executed. Moore appeals and argues that there was insufficient
evidence for the trial court to revoke his probation and that Indiana’s probation statutes
are too vague or ambiguous to provide adequate notice to Moore of his required conduct.
We affirm.
Facts and Procedural History
On April 7, 2010, Moore pleaded guilty to Class C felony trafficking with an
inmate. On May 5, 2010, Moore was sentenced to four years, with two years to be served
in the Indiana Department of Correction and two years suspended. Appellant's Appendix
p. 31. Moore was placed on probation for two years. During the sentencing hearing, the
trial court informed Moore of the terms of his probation. The first term was that Moore
was ordered not to commit another crime. Sentencing Tr. p. 25.
On March 2, 2012, the State filed a petition to revoke probation alleging that
Moore’s whereabouts were unknown. Moore appeared at the March 14, 2012 revocation
hearing, and testified that he had never been released from incarceration. He was
currently being held in Shelby County for new charges, and “caught a new case” while he
was incarcerated. Probation Tr. p. 4. The petition was dismissed.
2 On September 17, 2012, the State filed a second petition to revoke probation
alleging that Moore had been charged with Class A felony dealing in cocaine “on or
about the 4th day of February, 2012.” Appellant’s App. p. 46. During the November 8,
2012 fact finding hearing, the State introduced copies of Moore’s guilty plea and
sentencing order for the Class A felony dealing in cocaine charge. The trial court
revoked Moore’s probation and ordered Moore to serve his previously suspended
sentence with the Department of Correction. Appellant’s App. p. 56.
Discussion and Decision
The trial court’s decision to revoke probation is reviewed for an abuse of
discretion. Rosa v. State, 832 N.E.2d 1119, 1121 (Ind. Ct. App. 2005). “An abuse of
discretion occurs if the decision is against the logic and effect of the facts and
circumstances before the court.” Id. Under Indiana Code section 35-38-2-3(a), a court
may revoke probation if a person violates a condition of probation during the
probationary period. In addition, under Indiana Code section 35-38-2-1(b), the court may
revoke probation if a probationer commits any additional crime.
I. Insufficient Evidence
Moore argues that there was insufficient evidence for the trial court to revoke his
probation. When the sufficiency of evidence is challenged, we will neither “reweigh the
evidence nor reassess witness credibility.” Whatley v. State, 847 N.E.2d 1007, 1010 (Ind.
Ct. App. 2006) (citing Marsh v. State, 818 N.E.2d 143, 148 (Ind. Ct. App. 2004)). Rather,
we look to the evidence most favorable to the State and affirm the judgment if “there is
substantial evidence of probative value supporting revocation.” Id. We are also
3 reminded that the State’s burden of proof regarding alleged probation violations is proof
by a preponderance of the evidence. Id.
On February 4, 2012, while on probation for his trafficking offense, Moore
committed another crime by dealing cocaine. He pleaded guilty to this offense.
Therefore, there is sufficient evidence that Moore violated the terms of his probation. As
previously noted, a “violation of a single condition of probation is sufficient to permit a
trial court to revoke probation.” Rosa v. State, 832 N.E.2d 1119, 1121 (Ind. Ct. App.
2005); see also Smith v. State, 727 N.E.2d 763, 766 (Ind. Ct. App. 2000); Brooks v. State,
692 N.E.2d 951, 953-54 (Ind. Ct. App. 1998).
Moore argues that because he did not receive a written copy of the terms, he did
not receive sufficient notice of the terms of his probation. In Braxton v. State, 651
N.E.2d 268, 270 (Ind. 1995) the Indiana Supreme Court held that, “The law of this state
is well-established that although a trial court must specify the conditions of probation in
the record, it is always a condition of probation that a probationer not commit an
additional crime.” (Internal citations omitted). During the May 5, 2010 sentencing
hearing Moore admitted that he had been placed on probation several times in the past.
Sentencing Tr. pp. 15-16. The trial court explicitly told Moore that the first term of his
probation was that he was not to commit any other crimes. Id at 25.
Given that the trial court directly told Moore that commission of another crime
would violate his probation, and given that Moore had been placed on probation several
times in the past, Moore had sufficient notice that commission of a crime was a probation
4 violation. Under these facts and circumstances, the trial court’s revocation of Moore’s
probation is supported by sufficient evidence.
II. Adequate Notice
Moore argues that Indiana Code Sections 35-38-2-3(a), 35-38-2-2.3, and 35-38-2-
1 are too vague or ambiguous to provide adequate notice to Moore of his required
conduct. “A criminal statute may be invalidated for vagueness for either of two
independent reasons: (1) for failing to provide notice enabling ordinary people to
understand the conduct that it prohibits, and (2) for the possibility that it authorizes or
encourages arbitrary or discriminatory enforcement.” Brown v. State, 868 N.E. 2d 464,
467 (Ind. 2007). (citation omitted). The statute need only inform the individual of the
generally proscribed conduct; a statute need not list with itemized exactitude each item of
conduct prohibited. State v. Downey, 476 N.E.2d 121, 122 (Ind. 1985) (citation omitted).
Indiana Code Section 35-38-2-3(a) dictates when a trial court may revoke
probation:
The court may revoke a person's probation if: (1) the person has violated a condition of probation during the probationary period; and (2) the petition to revoke probation is filed during the probationary period or before the earlier of the following: (A) One (1) year after the termination of probation. (B) Forty-five (45) days after the state receives notice of the violation.
While Indiana Code Section 35-38-2-11 and Indiana Code Section 35-38-2-2.32
1 Ind. Code Section 35-38-2-1 provides: (a) Whenever it places a person on probation, the court shall: (1) specify in the record the conditions of the probation; and (2) advise the person that if the person violates a condition of probation during the probationary period, a petition to revoke probation may be filed before the earlier of the following: (A) One (1) year after the termination of probation, 5 require trial courts to provide conditions of probation to defendants. Section 35-38-2-1
(a) requires trial courts to advise the person of the probation conditions whenever it
places that person on probation. Section 35-38-2-2.3 requires trial courts to provide a
written copy of the probation provisions and inform the person that the State can file a
petition to revoke probation even after the probationary period has ended. In this case the
trial court complied by explicitly reading the terms of probation to Moore. The State
filed a petition to revoke probation during the probationary period.
Moore further argues that the statutes are vague because they do not provide a
definition of “probationary period.” Appellant’s Br. p. 7. This court has defined the
“probationary period” as “that period of time beginning immediately after sentencing and
ending at the conclusion of the ‘probationary phases’ of the defendant's sentence. Here,
the petition was filed after sentencing but before the conclusion of the ‘probationary
phase.’” Ashley v. State, 717 N.E.2d 927, 928 (Ind. Ct. App. 1999). In this case the
State filed its petition to revoke probation after the sentencing and before the end of the
formal probationary period. We therefore conclude that Moore has not established that
(B) Forty-five (45) days after the state receives notice of the violation. 2 Ind. Code Section 35-38-2-2.3 provides: (b) When a person is placed on probation, the person shall be given a written statement specifying: (1) the conditions of probation; and (2) that if the person violates a condition of probation during the probationary period, a petition to revoke probation may be filed before the earlier of the following: (A) One (1) year after the termination of probation. (B) Forty-five (45) days after the state receives notice of the violation.
6 the probation statues are vague or ambiguous, and he was given adequate notice of his
required conduct.
Conclusion
For all of these reasons, we affirm the revocation of Moore’s probation.
Affirmed.
NAJAM, J., and BROWN, J., concur.