MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Nov 15 2016, 7:04 am
regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jerry T. Drook Gregory F. Zoeller Marion, Indiana Attorney General of Indiana Lyubov Gore Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Craig Bright, November 15, 2016 Appellant-Defendant, Court of Appeals Case No. 27A05-1604-CR-887 v. Appeal from the Grant Superior Court State of Indiana, The Honorable Dana J. Appellee-Plaintiff. Kenworthy, Judge Trial Court Cause No. 27D02-1109-FC-265
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 27A05-1604-CR-887 | November 15, 2016 Page 1 of 7 STATEMENT OF THE CASE
[1] Appellant-Defendant, Craig Bright (Bright), appeals the trial court’s revocation
of his probation and the imposition of his previously suspended sentence.
[2] We affirm.
ISSUE
[3] Bright raises one issue on appeal, which we restate as: Whether the trial court
abused its discretion by ordering Bright to serve his previously suspended
sentence after he violated the terms of his probation.
FACTS AND PROCEDURAL HISTORY
[4] On September 23, 2011, the State filed an Information, charging Bright with
burglary, a Class C felony; three Counts of theft, Class D felonies; and four
Counts of forgery, Class C felonies. On January 23, 2012, Bright entered into a
plea agreement with the State in which he pled guilty to burglary and all four
Counts of forgery. The State agreed to dismiss the remaining Counts. On
February 13, 2012, in accordance with his plea agreement, Bright was
sentenced to eight years, with six years executed and two years suspended to
supervised probation.
[5] Bright’s supervised probation began on August 13, 2015. In part, Bright’s
conditions of probation specified that he would: (1) be confined to his residence
between 10:00 p.m. and 6:00 a.m.; (2) report to his probation officer; (3) refrain
from possessing or consuming controlled substances unless prescribed by a
Court of Appeals of Indiana | Memorandum Decision 27A05-1604-CR-887 | November 15, 2016 Page 2 of 7 physician; and (4) submit to any drug screens. On September 30, 2015, Bright
tested positive for amphetamines. On October 21, 2015, Bright admitted to
using methamphetamine prior to his drug screen. Following Bright’s failed
drug test and admission of using drugs, the State filed a motion on October 27,
2015, alleging that Bright had violated his probation. In accordance with the
State’s recommendation, the trial court ordered Bright to serve one weekend in
jail and complete a drug and alcohol assessment by November 12, 2015. Bright
did not undergo that assessment.
[6] On November 12, 2015, Bright had a meeting with probation officer Carla
Smith (Smith). Bright appeared for that meeting, however, he left early and
offered no explanation to the secretarial staff, nor did he reschedule his
appointment. On December 29, 2015, Smith and another officer visited
Bright’s home, and Smith noticed fresh needle marks on Bright’s right arm.
Smith also observed empty beer cans in the trash. At the end of the visit, Smith
instructed Bright to immediately go to the Grant County Jail to take a drug test.
Smith called the jail and made arrangements for Bright’s drug screen, but Bright
was a no-show.
[7] In the early morning of December 30, 2015, at approximately 1:30 a.m., and in
violation of his probation curfew, Bright went to Walmart and then to a gas
station to fuel his truck. Field officer Darryl Jackson (Jackson), who was
familiar with Bright’s truck from a previous home visit, spotted Bright’s truck at
the Walmart parking lot. Jackson took a picture of Bright’s vehicle and
immediately sent it to Smith. The following day, Bright contacted Smith and
Court of Appeals of Indiana | Memorandum Decision 27A05-1604-CR-887 | November 15, 2016 Page 3 of 7 confessed that he had failed to go to the Grant County Jail for his drug screen
as mandated. Bright did not disclose his Walmart and gas station trips; instead,
Bright explained that he went to Cornerstone, a drug treatment facility.
Specifically, Bright stated that he went to the “access unit at Cornerstone, at
which time there was no one to see him and he decided that he would sit in his
truck in the parking [] and wait for them to open in the morning so that he
could be seen.” (Tr. p. 11). Bright informed Smith that he did not leave the
Cornerstone parking lot that night, and further indicated that he would have
tested positive for methamphetamine had he been tested the previous day.
[8] On January 6, 2016, the State filed a petition to revoke Bright’s probation,
alleging that Bright had failed a drug test, violated his curfew, failed to report to
his probation officer, and failed to submit to a drug test. A bifurcated
revocation hearing was conducted on March 14 and March 21, 2016. At the
close of the hearing, the trial court found that Bright had violated his probation,
and it ordered Bright to serve the remainder of his previously suspended
sentence in the Indiana Department of Correction.
[9] Bright now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
[10] On appeal, Bright challenges the revocation of his probation. 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. Sanders v. State, 825 N.E.2d 952, 954-55 (Ind. Ct.
Court of Appeals of Indiana | Memorandum Decision 27A05-1604-CR-887 | November 15, 2016 Page 4 of 7 App. 2005), trans. denied. Probation is a favor granted by the State, not a right
to which a criminal defendant is entitled. Id. at 955. It is a criminal sanction
wherein a convicted defendant specifically agrees to accept conditions upon his
behavior in lieu of imprisonment. Bonner v. State, 776 N.E.2d 1244, 1247 (Ind.
Ct. App. 2002), trans. denied. These restrictions are designed to ensure that the
probation serves as a period of genuine rehabilitation and that the public is not
harmed by a probationer living within the community. Id. A probation
revocation hearing is in the nature of a civil proceeding and the alleged
violation need be proven only by a preponderance of the evidence. Pitman v.
State, 749 N.E.2d 557, 559 (Ind. Ct. App. 2001). Violation of a single condition
of probation is sufficient to revoke probation. Rosa v. State, 832 N.E.2d 1119,
1121 (Ind. Ct. App. 2005).
[11] Probation revocation is a two-step process. Sanders, 825 N.E .2d at 955. First
the trial court must make a factual determination that a violation of a condition
of probation actually has occurred. Id. If a violation is proven, then the trial
court must determine if the violation warrants the revocation of the probation.
Id.
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MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Nov 15 2016, 7:04 am
regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jerry T. Drook Gregory F. Zoeller Marion, Indiana Attorney General of Indiana Lyubov Gore Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Craig Bright, November 15, 2016 Appellant-Defendant, Court of Appeals Case No. 27A05-1604-CR-887 v. Appeal from the Grant Superior Court State of Indiana, The Honorable Dana J. Appellee-Plaintiff. Kenworthy, Judge Trial Court Cause No. 27D02-1109-FC-265
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 27A05-1604-CR-887 | November 15, 2016 Page 1 of 7 STATEMENT OF THE CASE
[1] Appellant-Defendant, Craig Bright (Bright), appeals the trial court’s revocation
of his probation and the imposition of his previously suspended sentence.
[2] We affirm.
ISSUE
[3] Bright raises one issue on appeal, which we restate as: Whether the trial court
abused its discretion by ordering Bright to serve his previously suspended
sentence after he violated the terms of his probation.
FACTS AND PROCEDURAL HISTORY
[4] On September 23, 2011, the State filed an Information, charging Bright with
burglary, a Class C felony; three Counts of theft, Class D felonies; and four
Counts of forgery, Class C felonies. On January 23, 2012, Bright entered into a
plea agreement with the State in which he pled guilty to burglary and all four
Counts of forgery. The State agreed to dismiss the remaining Counts. On
February 13, 2012, in accordance with his plea agreement, Bright was
sentenced to eight years, with six years executed and two years suspended to
supervised probation.
[5] Bright’s supervised probation began on August 13, 2015. In part, Bright’s
conditions of probation specified that he would: (1) be confined to his residence
between 10:00 p.m. and 6:00 a.m.; (2) report to his probation officer; (3) refrain
from possessing or consuming controlled substances unless prescribed by a
Court of Appeals of Indiana | Memorandum Decision 27A05-1604-CR-887 | November 15, 2016 Page 2 of 7 physician; and (4) submit to any drug screens. On September 30, 2015, Bright
tested positive for amphetamines. On October 21, 2015, Bright admitted to
using methamphetamine prior to his drug screen. Following Bright’s failed
drug test and admission of using drugs, the State filed a motion on October 27,
2015, alleging that Bright had violated his probation. In accordance with the
State’s recommendation, the trial court ordered Bright to serve one weekend in
jail and complete a drug and alcohol assessment by November 12, 2015. Bright
did not undergo that assessment.
[6] On November 12, 2015, Bright had a meeting with probation officer Carla
Smith (Smith). Bright appeared for that meeting, however, he left early and
offered no explanation to the secretarial staff, nor did he reschedule his
appointment. On December 29, 2015, Smith and another officer visited
Bright’s home, and Smith noticed fresh needle marks on Bright’s right arm.
Smith also observed empty beer cans in the trash. At the end of the visit, Smith
instructed Bright to immediately go to the Grant County Jail to take a drug test.
Smith called the jail and made arrangements for Bright’s drug screen, but Bright
was a no-show.
[7] In the early morning of December 30, 2015, at approximately 1:30 a.m., and in
violation of his probation curfew, Bright went to Walmart and then to a gas
station to fuel his truck. Field officer Darryl Jackson (Jackson), who was
familiar with Bright’s truck from a previous home visit, spotted Bright’s truck at
the Walmart parking lot. Jackson took a picture of Bright’s vehicle and
immediately sent it to Smith. The following day, Bright contacted Smith and
Court of Appeals of Indiana | Memorandum Decision 27A05-1604-CR-887 | November 15, 2016 Page 3 of 7 confessed that he had failed to go to the Grant County Jail for his drug screen
as mandated. Bright did not disclose his Walmart and gas station trips; instead,
Bright explained that he went to Cornerstone, a drug treatment facility.
Specifically, Bright stated that he went to the “access unit at Cornerstone, at
which time there was no one to see him and he decided that he would sit in his
truck in the parking [] and wait for them to open in the morning so that he
could be seen.” (Tr. p. 11). Bright informed Smith that he did not leave the
Cornerstone parking lot that night, and further indicated that he would have
tested positive for methamphetamine had he been tested the previous day.
[8] On January 6, 2016, the State filed a petition to revoke Bright’s probation,
alleging that Bright had failed a drug test, violated his curfew, failed to report to
his probation officer, and failed to submit to a drug test. A bifurcated
revocation hearing was conducted on March 14 and March 21, 2016. At the
close of the hearing, the trial court found that Bright had violated his probation,
and it ordered Bright to serve the remainder of his previously suspended
sentence in the Indiana Department of Correction.
[9] Bright now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
[10] On appeal, Bright challenges the revocation of his probation. 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. Sanders v. State, 825 N.E.2d 952, 954-55 (Ind. Ct.
Court of Appeals of Indiana | Memorandum Decision 27A05-1604-CR-887 | November 15, 2016 Page 4 of 7 App. 2005), trans. denied. Probation is a favor granted by the State, not a right
to which a criminal defendant is entitled. Id. at 955. It is a criminal sanction
wherein a convicted defendant specifically agrees to accept conditions upon his
behavior in lieu of imprisonment. Bonner v. State, 776 N.E.2d 1244, 1247 (Ind.
Ct. App. 2002), trans. denied. These restrictions are designed to ensure that the
probation serves as a period of genuine rehabilitation and that the public is not
harmed by a probationer living within the community. Id. A probation
revocation hearing is in the nature of a civil proceeding and the alleged
violation need be proven only by a preponderance of the evidence. Pitman v.
State, 749 N.E.2d 557, 559 (Ind. Ct. App. 2001). Violation of a single condition
of probation is sufficient to revoke probation. Rosa v. State, 832 N.E.2d 1119,
1121 (Ind. Ct. App. 2005).
[11] Probation revocation is a two-step process. Sanders, 825 N.E .2d at 955. First
the trial court must make a factual determination that a violation of a condition
of probation actually has occurred. Id. If a violation is proven, then the trial
court must determine if the violation warrants the revocation of the probation.
Id.
[12] Bright asserts that the trial court should have given greater weight to his
admission that he was addicted to drugs and was desperate to get help for his
addiction. In his appellate brief, Bright specifies that the trial court abused its
discretion by finding that
there were no mitigating factors, even though Bright admitted to his drug use, both to his probation officer and during the hearing, Court of Appeals of Indiana | Memorandum Decision 27A05-1604-CR-887 | November 15, 2016 Page 5 of 7 and admitted that he had failed to report because he was waiting to enter treatment at Cornerstone, [on] his own volition, without [the] court[’s] [] intervention . . .
(Appellant’s Br. p. 11).
[13] Despite his claim, we note that “trial courts are not required to balance
aggravating or mitigating circumstances when imposing a sentence in a
probation revocation proceeding.” Treece v. State, 10 N.E.3d 52, 59 (Ind. Ct.
App. 2014), trans. denied. Bright conceded that he violated the terms of his
probation by using drugs, by failing to appear for a meeting with his probation
officer, by failing a drug screen, and by being outside his home past his curfew.
During the probation revocation hearing, Bright presented testimony to explain
why he violated his curfew on December 30, 2015. Specifically, Bright
explained that he left his house to go Walmart at around 1:30 a.m. to buy
books, Sudoku, and a pair of eye glasses, in anticipation of checking himself in
at the Cornerstone facility for drug treatment. Bright claimed that he was
parked outside the treatment facility until the next morning. Despite the fact
that Bright argues that the trial court should have taken into consideration his
version of events, the trial court chose to regard his claim as an insufficient
excuse. Moreover, even if we were to disregard his curfew violation, that still
leaves three other violations. See Rosa, 832 N.E.2d at 1119 (holding that a
violation of a single condition of probation is sufficient to revoke probation).
Accordingly, in light of Bright’s probation violations, we find no abuse of
Court of Appeals of Indiana | Memorandum Decision 27A05-1604-CR-887 | November 15, 2016 Page 6 of 7 discretion in the trial court’s decision to revoke Bright’s probation and to order
him to serve the remainder of his sentence.
CONCLUSION
[14] Based on the foregoing, we conclude that the trial court did not abuse its
discretion in revoking Bright’s probation and ordering him to serve the
remainder of his sentence.
[15] Affirmed.
[16] Bailey, J. and Barnes, J. concur
Court of Appeals of Indiana | Memorandum Decision 27A05-1604-CR-887 | November 15, 2016 Page 7 of 7