MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Dec 13 2018, 10:15 am
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 David W. Stone, IV Curtis T. Hill, Jr. Anderson, Indiana Attorney General of Indiana Caryn N. Szyper Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Dominique Quinn Brisker, December 13, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1397 v. Appeal from the Madison Circuit Court State of Indiana, The Honorable Mark K. Dudley, Appellee-Plaintiff. Judge Trial Court Cause No. 48C06-1302-FB-353
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1397 | December 13, 2018 Page 1 of 7 Statement of the Case
[1] Dominique Brisker (“Brisker”) appeals the trial court’s order revoking his
probation and ordering him to serve his previously suspended four-year
sentence. Finding no abuse of the trial court’s discretion, we affirm the trial
court’s judgment.
[2] We affirm.
Issues
1. Whether there is sufficient evidence to support the revocation of Brisker’s probation.
2. Whether the trial court abused its discretion by ordering Brisker to serve his previously suspended sentence.
Facts
[3] In November 2013, Brisker pled guilty to Class B felony unlawful possession of
a firearm by a serious violent felon. The trial court sentenced him to ten (10)
years with four (4) years to be served in the Department of Correction
(“DOC”), two (2) years at the Madison County Work Release Center, and four
(4) years suspended to probation. Pursuant to the terms and conditions of his
probation, Brisker was ordered, among other things, to “not knowingly
associate with any person who has been convicted of a felony, except for just
cause[.]” (App. 74). He was also ordered to comply with certain additional
special terms, including the following:
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1397 | December 13, 2018 Page 2 of 7 (A) Successful completion of work release.
(B) Within 60 days, defendant ordered to obtain a substance abuse evaluation at an accredited facility approved by the Probation Department with full compliance with recommendations including inpatient treatment, if suggested, and submit written proof of compliance to Probation Department;
(C) Defendant ordered to totally abstain from the use of alcoholic beverages and/or illicit drugs. On three (3) hours notice from the Probation Department, defendant ordered to submit to random urine and/or chemical screens, and be financially responsible for said tests;
(D) Defendant ordered to find and maintain employment of twenty-five (25) hours per week. Defendant shall provide written verification of compliance to the Probation Department. Defendant shall not change employment without prior written approval of the Probation Department. In the event the defendant becomes unemployed during period of probation, defendant to successfully participate in a job seeking skills program approved by the Court and/or Probation Department.
(App. 71-72).
[4] In October 2016, the State filed a notice of violation of suspended sentence.
After a hearing, the trial court found that Brisker had violated his work release
when his whereabouts were unknown on two occasions; he had failed to meet
his financial obligations; and he had failed to successfully complete work
release. The trial court ordered Brisker to serve two months in the Madison
County Detention Center and to return to work release thereafter.
[5] In November 2017, the State filed a second notice of violation of suspended
sentence. This notice read as follows:
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1397 | December 13, 2018 Page 3 of 7 (a) Not to violate the laws of Indiana or the U.S. and failure to behave well in society: On/about 11/01/17, you are alleged to have committed the following new criminal offense(s): Ct. 1: Unlawful Possession of a Firearm by a Serious Violent Felon, Level 4 Felony; and Ct II: Pointing a Firearm, Level 6 Felony, as filed in Madison County Circuit Court VI under Cause Number 48C06-1711-F4-002743;
(b) Failed to obtain a substance abuse evaluation at a treatment facility approved by probation within 30 days of sentencing/release, comply with treatment recommendations, and provide written verification of successful completion of said program to the probation department;
(c) Failed to maintain employment and/or verify employment to probation department; and
(d) On or about 11/01/17, the defendant failed to not knowingly associate with any person who has been convicted of a felony, to wit: Deonta Anderson and Malachi Carter.
(App. 129). A bench warrant was issued, and Brisker was arrested in
Minnesota in December 2017.
[6] The trial court held an evidentiary hearing over three days. It found that
Brisker had violated the terms of his probation when he failed to obtain a
substance abuse evaluation and successfully complete the recommendations;
failed to maintain employment or verify employment; and avoid associating
with known felons.1 The trial court then revoked Brisker’s probation and
1 The trial court determined that the State had not proven the allegation that Brisker engaged in new criminal activity by possessing a firearm and pointing a firearm at another person.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1397 | December 13, 2018 Page 4 of 7 ordered him to serve his previously suspended four-year sentence. Brisker now
appeals.
Decision
[7] Brisker argues that: (1) there is insufficient evidence to support the revocation of
his probation; and (2) the trial court abused its discretion when it ordered him
to serve his previously suspended four-year sentence. We address each of his
contentions in turn.
1. Probation Revocation
[8] Brisker’s first contention is that there is insufficient evidence to support the trial
court’s finding that he violated a condition of probation by associating with
known felons. “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). A probation revocation hearing is civil in nature, and the
alleged violation need be proven only by a preponderance of the evidence.
Pittman v. State, 749 N.E.2d 557, 559 (Ind. Ct. App. 2001), trans. denied. It is
within the trial court’s discretion to determine the conditions of probation and
to revoke probation if those conditions are violated. Heaton v. State, 984 N.E.2d
614, 616 (Ind. 2013). We review a trial court’s probation violation
determination for an abuse of discretion. Id. An abuse of discretion occurs
where the decision is clearly against the logic and effect of the facts and
circumstances or when the trial court misinterprets the law. Id. Further, the
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1397 | December 13, 2018 Page 5 of 7 violation of a single condition of probation is sufficient to revoke probation.
Pittman, 749 N.E.2d at 559.
[9] Here, Brisker challenges only one of his three probation violations. Specifically,
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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 Dec 13 2018, 10:15 am
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 David W. Stone, IV Curtis T. Hill, Jr. Anderson, Indiana Attorney General of Indiana Caryn N. Szyper Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Dominique Quinn Brisker, December 13, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1397 v. Appeal from the Madison Circuit Court State of Indiana, The Honorable Mark K. Dudley, Appellee-Plaintiff. Judge Trial Court Cause No. 48C06-1302-FB-353
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1397 | December 13, 2018 Page 1 of 7 Statement of the Case
[1] Dominique Brisker (“Brisker”) appeals the trial court’s order revoking his
probation and ordering him to serve his previously suspended four-year
sentence. Finding no abuse of the trial court’s discretion, we affirm the trial
court’s judgment.
[2] We affirm.
Issues
1. Whether there is sufficient evidence to support the revocation of Brisker’s probation.
2. Whether the trial court abused its discretion by ordering Brisker to serve his previously suspended sentence.
Facts
[3] In November 2013, Brisker pled guilty to Class B felony unlawful possession of
a firearm by a serious violent felon. The trial court sentenced him to ten (10)
years with four (4) years to be served in the Department of Correction
(“DOC”), two (2) years at the Madison County Work Release Center, and four
(4) years suspended to probation. Pursuant to the terms and conditions of his
probation, Brisker was ordered, among other things, to “not knowingly
associate with any person who has been convicted of a felony, except for just
cause[.]” (App. 74). He was also ordered to comply with certain additional
special terms, including the following:
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1397 | December 13, 2018 Page 2 of 7 (A) Successful completion of work release.
(B) Within 60 days, defendant ordered to obtain a substance abuse evaluation at an accredited facility approved by the Probation Department with full compliance with recommendations including inpatient treatment, if suggested, and submit written proof of compliance to Probation Department;
(C) Defendant ordered to totally abstain from the use of alcoholic beverages and/or illicit drugs. On three (3) hours notice from the Probation Department, defendant ordered to submit to random urine and/or chemical screens, and be financially responsible for said tests;
(D) Defendant ordered to find and maintain employment of twenty-five (25) hours per week. Defendant shall provide written verification of compliance to the Probation Department. Defendant shall not change employment without prior written approval of the Probation Department. In the event the defendant becomes unemployed during period of probation, defendant to successfully participate in a job seeking skills program approved by the Court and/or Probation Department.
(App. 71-72).
[4] In October 2016, the State filed a notice of violation of suspended sentence.
After a hearing, the trial court found that Brisker had violated his work release
when his whereabouts were unknown on two occasions; he had failed to meet
his financial obligations; and he had failed to successfully complete work
release. The trial court ordered Brisker to serve two months in the Madison
County Detention Center and to return to work release thereafter.
[5] In November 2017, the State filed a second notice of violation of suspended
sentence. This notice read as follows:
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1397 | December 13, 2018 Page 3 of 7 (a) Not to violate the laws of Indiana or the U.S. and failure to behave well in society: On/about 11/01/17, you are alleged to have committed the following new criminal offense(s): Ct. 1: Unlawful Possession of a Firearm by a Serious Violent Felon, Level 4 Felony; and Ct II: Pointing a Firearm, Level 6 Felony, as filed in Madison County Circuit Court VI under Cause Number 48C06-1711-F4-002743;
(b) Failed to obtain a substance abuse evaluation at a treatment facility approved by probation within 30 days of sentencing/release, comply with treatment recommendations, and provide written verification of successful completion of said program to the probation department;
(c) Failed to maintain employment and/or verify employment to probation department; and
(d) On or about 11/01/17, the defendant failed to not knowingly associate with any person who has been convicted of a felony, to wit: Deonta Anderson and Malachi Carter.
(App. 129). A bench warrant was issued, and Brisker was arrested in
Minnesota in December 2017.
[6] The trial court held an evidentiary hearing over three days. It found that
Brisker had violated the terms of his probation when he failed to obtain a
substance abuse evaluation and successfully complete the recommendations;
failed to maintain employment or verify employment; and avoid associating
with known felons.1 The trial court then revoked Brisker’s probation and
1 The trial court determined that the State had not proven the allegation that Brisker engaged in new criminal activity by possessing a firearm and pointing a firearm at another person.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1397 | December 13, 2018 Page 4 of 7 ordered him to serve his previously suspended four-year sentence. Brisker now
appeals.
Decision
[7] Brisker argues that: (1) there is insufficient evidence to support the revocation of
his probation; and (2) the trial court abused its discretion when it ordered him
to serve his previously suspended four-year sentence. We address each of his
contentions in turn.
1. Probation Revocation
[8] Brisker’s first contention is that there is insufficient evidence to support the trial
court’s finding that he violated a condition of probation by associating with
known felons. “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). A probation revocation hearing is civil in nature, and the
alleged violation need be proven only by a preponderance of the evidence.
Pittman v. State, 749 N.E.2d 557, 559 (Ind. Ct. App. 2001), trans. denied. It is
within the trial court’s discretion to determine the conditions of probation and
to revoke probation if those conditions are violated. Heaton v. State, 984 N.E.2d
614, 616 (Ind. 2013). We review a trial court’s probation violation
determination for an abuse of discretion. Id. An abuse of discretion occurs
where the decision is clearly against the logic and effect of the facts and
circumstances or when the trial court misinterprets the law. Id. Further, the
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1397 | December 13, 2018 Page 5 of 7 violation of a single condition of probation is sufficient to revoke probation.
Pittman, 749 N.E.2d at 559.
[9] Here, Brisker challenges only one of his three probation violations. Specifically,
he argues that the trial court abused its discretion by finding that he associated
with felons. We need not review Brisker’s challenge to one of his probation
violations because the trial court found two other probation violations. As
noted above, evidence of a single probation violation is sufficient to sustain a
revocation of probation. See Pittman, 749 N.E.2d at 559 (noting that probation
can be revoked based on a single violation); I.C. § 35-38-2-3(h) (authorizing the
trial court to revoke a defendant’s probation if it finds that the person has
violated a condition of probation at any time before termination of the period).
Because the trial court found that Brisker had violated three conditions of his
probation, two of which are unchallenged by Brisker, we affirm the trial court’s
ultimate decision to revoke his probation.
2. Order to Serve Suspended Sentence
[10] Brisker also argues that the trial court abused its discretion when it ordered him
to serve his previously suspended four-year sentence. Once a trial court has
exercised its grace by ordering probation rather than incarceration, it should
have considerable leeway in deciding how to proceed when the conditions of
probation are violated. Prewitt, 878 N.E.2d at 188. If this discretion were not
afforded to trial courts and sentences were scrutinized too severely on appeal,
trial courts might be less inclined to order probation. Id. Accordingly, a trial
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1397 | December 13, 2018 Page 6 of 7 court’s sentencing decision for a probation violation is reviewable for an abuse
of discretion. Id. An abuse of discretion occurs when the trial court’s decision
is clearly against the logic and effect of the facts and circumstances. Id. After
the trial court has determined that a probationer has violated probation, the trial
court may impose one (1) or more of the following sanctions:
(1) Continue the person on probation, with or without modifying or enlarging the conditions.
(2) Extend the person’s probationary period for not more than one (1) year beyond the original probationary period.
(3) Order execution of all or part of the sentence that was suspended at the time of initial sentencing.
IND. CODE § 35-38-2-3(h).
[11] The record reveals that the trial court had ample basis for its decision to revoke
all four years of Brisker’s previously suspended sentence. Significantly, Brisker
violated multiple conditions of his probation. Additionally, as the trial court
noted, this was Brisker’s second violation under this cause number. The trial
court’s decision is supported by the record and not clearly against the logic and
effect of the facts and circumstances before it. Accordingly, the trial court was
well within its discretion to order Brisker to serve the entirety of his previously
suspended sentence upon finding that he had violated the terms of his
probation.
[12] Affirmed.
Najam, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1397 | December 13, 2018 Page 7 of 7