MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jul 07 2017, 6:33 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Randy M. Fisher Curtis T. Hill, Jr. Deputy Public Defender Attorney General of Indiana Leonard, Hammond, Thoma & Terrill Lyubov Gore Fort Wayne, Indiana Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
David J. Taylor, July 7, 2017 Appellant-Defendant, Court of Appeals Case No. 02A05-1701-CR-99 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Samuel R. Keirns, Appellee-Plaintiff Magistrate Trial Court Cause No. 02D06-1512-F5-362
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 02A05-1701-CR-99 | July 7, 2017 Page 1 of 7 [1] David Taylor appeals the revocation of his probation, arguing that there is
insufficient evidence and that the revocation violated his due process rights.
Finding sufficient evidence and no due process violation, we affirm.
Facts [2] On February 16, 2016, Taylor pleaded guilty to Level 6 felony intimidation.
Taylor was sentenced to one year and 183 days, with one year suspended to
probation. The executed sentence was to be served through the Allen County
Community Corrections Home Detention Program.
[3] Taylor tested positive for cocaine during routine drug screenings on May 6, 10,
and 19, 2016. On May 31, the State petitioned to revoke Taylor’s participation
in the Home Detention Program. Two days later, the State filed a petition to
revoke his probation. After conducting a hearing on Taylor’s alleged violations,
the trial court dismissed both petitions. As an additional condition of his
probation, the trial court ordered Taylor to reside at Countryside Ranch, a
halfway house. The trial court adopted a “zero tolerance” policy for further
violations. Appellant’s Vol. II p. 84.
[4] The State filed a second petition to revoke Taylor’s probation on August 16,
2016, alleging that he had failed to reside at Countryside Ranch and had made
no contact with the facility. The trial court held a second violation hearing and
dismissed the petition to revoke Taylor’s probation. The trial court again
modified the conditions of his probation and ordered him to complete the Road
to Recovery rehabilitation program.
Court of Appeals of Indiana | Memorandum Decision 02A05-1701-CR-99 | July 7, 2017 Page 2 of 7 [5] Following the second hearing, Taylor was released from custody. He did not
return to the Fort Wayne Rescue Mission where he had been living. He did not
report to the Road to Recovery facility, and he missed a scheduled appointment
with his probation officer. Taylor’s probation officer sent letters to the Mission
and Road to Recovery to notify him that their appointment had been
rescheduled, but Taylor failed to report to the rescheduled meeting and made
no contact with the officer. On October 13, 2016, the State filed a third petition
to revoke Taylor’s probation. The trial court granted the petition and ordered
Taylor to serve his previously suspended sentence of one year. Taylor now
appeals.
Discussion and Decision [6] Taylor argues that (1) there is insufficient evidence to support revocation of his
probation, and (2) the court violated his due process rights by giving him an
insufficient opportunity to gather evidence in his defense.
I. Sufficiency of Evidence [7] Indiana Code section 35-38-2-3(a)(1) states that probation may be revoked
when the probationer violates a condition of probation during the probationary
period. At a violation hearing, the burden of proof on the State is
preponderance of the evidence. Heaton v. State, 984 N.E.2d 614, 617 (Ind.
2013). In reviewing the revocation, this Court will consider only the evidence
most favorable to the judgment without reweighing that evidence. Woods v.
State, 892 N.E.2d 637, 639 (Ind. 2008). We will reverse only when the decision
Court of Appeals of Indiana | Memorandum Decision 02A05-1701-CR-99 | July 7, 2017 Page 3 of 7 is clearly against the logic and effect of the facts and circumstances, or when the
court misinterprets the law. Heaton, 984 N.E.2d at 616.
[8] Revocation of probation is a two-step process. First, the hearing court must
make a factual determination that violation of a condition of probation
occurred. Sullivan v. State, 56 N.E.2d 1157, 1160 (Ind. Ct. App. 2016). If the
State proves a violation, the hearing court must then decide whether the
violation warrants revocation. Id. The court may consider whether the violation
was voluntary: “[a]lthough not a defense to revocation, lack of volition is often
a factor pertinent to a disposition in a revocation proceeding.” Woods, 892
N.E.2d at 641. Furthermore, for probationers who have violated an order of
strict compliance, “due process requires that a defendant be given the
opportunity to explain why even this final chance is deserving of further
consideration.” Id.
[9] In this case, Taylor violated the conditions of his probation multiple times.
First, he failed to visit the Road to Recovery rehabilitation facility for an initial
assessment. He then missed scheduled appointments with his probation officer
on September 30 and October 6, 2016, despite the officer providing notice of
both. The probation officer received no communication explaining Taylor’s
absences.
[10] Furthermore, prior to revocation of Taylor’s probation, he committed two other
revocable offenses. In May 2016, three separate drug screens conducted several
days apart indicated that Taylor had used cocaine in violation of the conditions
Court of Appeals of Indiana | Memorandum Decision 02A05-1701-CR-99 | July 7, 2017 Page 4 of 7 of his home detention. Following Taylor’s first revocation hearing, the trial
court allowed him to remain in the Home Detention Program and only
imposed the additional condition that he reside at Countryside Ranch, a
halfway house. Despite being placed on a “zero tolerance” policy, Taylor
subsequently failed to report to Countryside Ranch.
[11] Taylor argues that his failure to report to Road to Recovery did not warrant
revocation because attending the program included a financial obligation.
Indiana Code section 35-38-2-3(g) states: “Probation may not be revoked for
failure to comply with conditions of a sentence that imposes financial
obligations on the person unless the person recklessly, knowingly, or
intentionally fails to pay.” Taylor claims that because he could not afford the
Road to Recovery rehabilitation program, this condition of his probation was a
financial burden, and that revocation of his probation for failure to attend
constitutes a violation of Indiana Code section 35-38-2-3(g).
[12] Taylor’s argument is unpersuasive for the simple reason that he never once
informed the trial court or his probation officer that the program imposed a
substantial financial burden that he was unable to overcome. Had he done so,
alternative arrangements could have been made. Instead, he simply failed to
attend.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jul 07 2017, 6:33 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Randy M. Fisher Curtis T. Hill, Jr. Deputy Public Defender Attorney General of Indiana Leonard, Hammond, Thoma & Terrill Lyubov Gore Fort Wayne, Indiana Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
David J. Taylor, July 7, 2017 Appellant-Defendant, Court of Appeals Case No. 02A05-1701-CR-99 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Samuel R. Keirns, Appellee-Plaintiff Magistrate Trial Court Cause No. 02D06-1512-F5-362
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 02A05-1701-CR-99 | July 7, 2017 Page 1 of 7 [1] David Taylor appeals the revocation of his probation, arguing that there is
insufficient evidence and that the revocation violated his due process rights.
Finding sufficient evidence and no due process violation, we affirm.
Facts [2] On February 16, 2016, Taylor pleaded guilty to Level 6 felony intimidation.
Taylor was sentenced to one year and 183 days, with one year suspended to
probation. The executed sentence was to be served through the Allen County
Community Corrections Home Detention Program.
[3] Taylor tested positive for cocaine during routine drug screenings on May 6, 10,
and 19, 2016. On May 31, the State petitioned to revoke Taylor’s participation
in the Home Detention Program. Two days later, the State filed a petition to
revoke his probation. After conducting a hearing on Taylor’s alleged violations,
the trial court dismissed both petitions. As an additional condition of his
probation, the trial court ordered Taylor to reside at Countryside Ranch, a
halfway house. The trial court adopted a “zero tolerance” policy for further
violations. Appellant’s Vol. II p. 84.
[4] The State filed a second petition to revoke Taylor’s probation on August 16,
2016, alleging that he had failed to reside at Countryside Ranch and had made
no contact with the facility. The trial court held a second violation hearing and
dismissed the petition to revoke Taylor’s probation. The trial court again
modified the conditions of his probation and ordered him to complete the Road
to Recovery rehabilitation program.
Court of Appeals of Indiana | Memorandum Decision 02A05-1701-CR-99 | July 7, 2017 Page 2 of 7 [5] Following the second hearing, Taylor was released from custody. He did not
return to the Fort Wayne Rescue Mission where he had been living. He did not
report to the Road to Recovery facility, and he missed a scheduled appointment
with his probation officer. Taylor’s probation officer sent letters to the Mission
and Road to Recovery to notify him that their appointment had been
rescheduled, but Taylor failed to report to the rescheduled meeting and made
no contact with the officer. On October 13, 2016, the State filed a third petition
to revoke Taylor’s probation. The trial court granted the petition and ordered
Taylor to serve his previously suspended sentence of one year. Taylor now
appeals.
Discussion and Decision [6] Taylor argues that (1) there is insufficient evidence to support revocation of his
probation, and (2) the court violated his due process rights by giving him an
insufficient opportunity to gather evidence in his defense.
I. Sufficiency of Evidence [7] Indiana Code section 35-38-2-3(a)(1) states that probation may be revoked
when the probationer violates a condition of probation during the probationary
period. At a violation hearing, the burden of proof on the State is
preponderance of the evidence. Heaton v. State, 984 N.E.2d 614, 617 (Ind.
2013). In reviewing the revocation, this Court will consider only the evidence
most favorable to the judgment without reweighing that evidence. Woods v.
State, 892 N.E.2d 637, 639 (Ind. 2008). We will reverse only when the decision
Court of Appeals of Indiana | Memorandum Decision 02A05-1701-CR-99 | July 7, 2017 Page 3 of 7 is clearly against the logic and effect of the facts and circumstances, or when the
court misinterprets the law. Heaton, 984 N.E.2d at 616.
[8] Revocation of probation is a two-step process. First, the hearing court must
make a factual determination that violation of a condition of probation
occurred. Sullivan v. State, 56 N.E.2d 1157, 1160 (Ind. Ct. App. 2016). If the
State proves a violation, the hearing court must then decide whether the
violation warrants revocation. Id. The court may consider whether the violation
was voluntary: “[a]lthough not a defense to revocation, lack of volition is often
a factor pertinent to a disposition in a revocation proceeding.” Woods, 892
N.E.2d at 641. Furthermore, for probationers who have violated an order of
strict compliance, “due process requires that a defendant be given the
opportunity to explain why even this final chance is deserving of further
consideration.” Id.
[9] In this case, Taylor violated the conditions of his probation multiple times.
First, he failed to visit the Road to Recovery rehabilitation facility for an initial
assessment. He then missed scheduled appointments with his probation officer
on September 30 and October 6, 2016, despite the officer providing notice of
both. The probation officer received no communication explaining Taylor’s
absences.
[10] Furthermore, prior to revocation of Taylor’s probation, he committed two other
revocable offenses. In May 2016, three separate drug screens conducted several
days apart indicated that Taylor had used cocaine in violation of the conditions
Court of Appeals of Indiana | Memorandum Decision 02A05-1701-CR-99 | July 7, 2017 Page 4 of 7 of his home detention. Following Taylor’s first revocation hearing, the trial
court allowed him to remain in the Home Detention Program and only
imposed the additional condition that he reside at Countryside Ranch, a
halfway house. Despite being placed on a “zero tolerance” policy, Taylor
subsequently failed to report to Countryside Ranch.
[11] Taylor argues that his failure to report to Road to Recovery did not warrant
revocation because attending the program included a financial obligation.
Indiana Code section 35-38-2-3(g) states: “Probation may not be revoked for
failure to comply with conditions of a sentence that imposes financial
obligations on the person unless the person recklessly, knowingly, or
intentionally fails to pay.” Taylor claims that because he could not afford the
Road to Recovery rehabilitation program, this condition of his probation was a
financial burden, and that revocation of his probation for failure to attend
constitutes a violation of Indiana Code section 35-38-2-3(g).
[12] Taylor’s argument is unpersuasive for the simple reason that he never once
informed the trial court or his probation officer that the program imposed a
substantial financial burden that he was unable to overcome. Had he done so,
alternative arrangements could have been made. Instead, he simply failed to
attend. He knew that his attendance was a condition of his probation and that
he was on a “zero tolerance” compliance policy. Given that he failed to raise
the issue of finances to the trial court, he cannot now make that argument—it is
too late.
Court of Appeals of Indiana | Memorandum Decision 02A05-1701-CR-99 | July 7, 2017 Page 5 of 7 [13] Taylor also argues that he did not have notice of the rescheduled appointment
with his probation officer on October 6, 2016, and he is therefore not
responsible for his second absence. However, had Taylor complied with the
condition of his probation requiring him to attend Road to Recovery, he would
have received the notice letter sent there. Moreover, he has no excuse for
missing the first appointment. The trial court therefore did not err in finding
that his failure to attend these appointments was a violation of his probation.
[14] Taylor’s behavior indicates that although he was given ample opportunity and
multiple chances to comply with the conditions of probation, he was unwilling
to do so. Taylor failed to comply with several conditions of his probation within
the probationary period. The trial court did not err in finding that the violations
warranted revocation.
II. Due Process [15] Taylor also argues that his due process rights were violated because the trial
court did not afford him sufficient time or resources to gather evidence for his
defense. A probationer has the following due process rights before and during a
revocation hearing: (1) written notice of the alleged violation, (2) disclosure of
the evidence against him, (3) the opportunity to be heard in person and to
present witnesses and documentary evidence, (4) the opportunity to confront
and cross-examine adverse witnesses, (5) a neutral and detached hearing body,
and (6) a written statement by the fact finders indicating the evidence relied on
in revoking probation. Wann v. State, 997 N.E.2d 1103, 1105 (Ind. Ct. App.
Court of Appeals of Indiana | Memorandum Decision 02A05-1701-CR-99 | July 7, 2017 Page 6 of 7 2013) (citing Morrissey v. Brewer, 408 U.S. 471, 489 (1972)). Taylor alleges that
the trial court did not allow him sufficient opportunity to gather evidence in his
defense and therefore violated his right to be heard in person and to present
witnesses and documentary evidence.
[16] Where a probationer admits to violating a condition of probation at his hearing,
the procedural safeguards of Morrissey and an evidentiary hearing are not
necessary. Terrell v. State, 886 N.E.2d 98, 99 (Ind. Ct. App. 2008). Instead, the
trial court can proceed to the second step of the inquiry and determine whether
the violation warrants revocation. Id.
[17] Taylor claims that his right to present documentary evidence was violated
because he was unable to obtain his phone records while incarcerated, and the
phone records would have shown that he had contacted his probation officer
prior to his missed appointments. However, Taylor admitted to failing to
contact his probation officer at the hearing. Tr. p. 15, 18, 23, 24–25, 26.
Therefore, it was unnecessary for the trial court to afford him another
opportunity to introduce the phone records into evidence. The trial court did
not prevent Taylor from admitting evidence in his defense and therefore did not
violate Taylor’s due process rights. In sum, the trial court did not err in
revoking Taylor’s probation.
[18] The judgment of the trial court is affirmed.
Barnes, J., and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 02A05-1701-CR-99 | July 7, 2017 Page 7 of 7