MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Feb 16 2016, 6:43 am 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 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
Dupree M. Steward, February 16, 2016 Appellant-Defendant, Court of Appeals Case No. 27A02-1505-CR-405 v. Appeal from the Grant Superior Court State of Indiana, The Honorable Dana J. Appellee-Plaintiff. Kenworthy, Judge Trial Court Cause No. 27D02-0607-FB-136
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 27A02-1505-CR-405 | Ferbruary 16, 2016 Page 1 of 7 [1] Dupree Steward appeals the revocation of his probation, raising two issues on
appeal:
I. Did the State present sufficient evidence to support the revocation of Steward’s probation?
II. Did the trial court abuse its discretion in ordering Steward to serve the entirety of his previously suspended sentence?
[2] We affirm.
Facts & Procedural History
[3] On November 15, 2010, Steward pled guilty to class D felony possession of
cocaine and class A misdemeanor possession of marijuana. He received an
aggregate sentence of three years, with one and a half years executed and one
and half years suspended to probation. The executed portion of Steward’s
sentence was to be served on home detention, subject to the approval and
supervision of a community corrections program in either Grant or Marion
County. In its sentencing order, the trial court gave Steward sixty days within
which to seek admittance to such a program. If Steward had not begun serving
his executed sentence on home detention within that time, he was ordered to
appear before the trial court for review on January 24, 2011. Additionally, at
the time of his sentencing, Steward received and signed an order imposing
conditions of probation. In relevant part, those terms provided that Steward
would not commit another criminal offense, would report to his probation
officer as directed, would not possess or consume any controlled substances Court of Appeals of Indiana | Memorandum Decision 27A02-1505-CR-405 | Ferbruary 16, 2016 Page 2 of 7 unless prescribed by a physician, and would submit to drug screens as requested
by his probation officer.
[4] The Grant County Probation Department filed a petition to revoke Steward’s
probation on February 4, 2011. The petition alleged that Steward had violated
his probation by failing to appear for a scheduled meeting with his probation
officer and by failing to provide his probation officer with an accurate address.
On March 3, 2011, the Probation Department filed an addendum to the petition
to revoke in which it alleged that Steward had also violated his probation by
committing another criminal offense, class A misdemeanor driving while
suspended. The addendum further alleged that Steward had failed to appear for
his initial hearing on the new charge and, consequently, a warrant had been
issued for his arrest.
[5] The trial court held a fact-finding hearing on the petition to revoke on March
14, 2011. The trial court found that Steward had violated the terms of his
sentence and probation “by failing to follow through with Home Detention,
failing to report for Court review date, failing to report for probation meetings,
failing to keep his contact information current, failing to maintain contact with
the Grant County Probation Department, [and] being charged with a new
criminal offense[.]” Appellant’s Appendix at 27. As a sanction, the trial court
ordered Steward to serve the executed portion of his sentence in the
Department of Correction instead of on home detention.
Court of Appeals of Indiana | Memorandum Decision 27A02-1505-CR-405 | Ferbruary 16, 2016 Page 3 of 7 [6] After serving the executed portion of his sentence, Steward was released to
probation in November 2011. Upon his release, Steward’s probation was
transferred to Allen County. On March 23, 2012, the Probation Department
filed a petition to revoke Steward’s probation, this time alleging that he had
violated the terms of his probation by testing positive for marijuana on
February 14 and March 12, 2012. At a probation violation hearing held on
April 23, 2012, Steward admitted to the violations and entered into an
agreement with the trial court whereby he would complete twenty hours of
community service and a drug and alcohol assessment in return for being
allowed to continue on probation.
[7] The Probation Department filed yet another petition to revoke Steward’s
probation on August 22, 2012, alleging that Steward had again tested positive
for marijuana. A warrant was issued for his arrest, and when Steward spoke to
his probation officer on the telephone, he indicated that he would be turning
himself in. Steward, however, did not do so and ceased contact with the
Probation Department. On October 1, 2012, the Probation Department filed an
addendum to the petition to revoke in which it alleged that Steward had
violated the terms of his probation by failing to report to probation and to a
drug treatment provider and by missing a drug screen.
[8] Steward’s whereabouts were unknown until two and a half years later, when he
was arrested in Allen County and charged with multiple offenses. When
Steward posted bond and was released in Allen County, he was arrested on the
outstanding warrant in this case.
Court of Appeals of Indiana | Memorandum Decision 27A02-1505-CR-405 | Ferbruary 16, 2016 Page 4 of 7 [9] The trial court conducted a fact-finding hearing on the petition to revoke
Steward’s probation in this case on May 11, 2015. At that time, the State filed
another addendum to the petition, alleging that Steward had violated the terms
of his probation by committing new criminal offenses and by failing to report to
probation since August 2012. At the hearing, Steward admitted to violating his
probation. At the conclusion of the hearing, the trial court found that Steward
had violated his probation by testing positive for marijuana in July 2012 and
failing to report to probation since August 2012. As a result, the trial court
revoked Steward’s probation and ordered him to serve the entirety of his
previously suspended sentence as a sanction. Steward now appeals.
I. Sufficiency of the Evidence
[10] Steward first argues that the State presented insufficient evidence to support the
revocation of his probation. A probation revocation hearing is civil in nature,
and the alleged violation must be proven by the State by a preponderance of the
evidence. Mateyko v. State, 901 N.E.2d 554, 558 (Ind. Ct. App. 2009), trans.
denied. When reviewing a claim of insufficient evidence to support a trial
court’s decision to revoke probation, we consider only the evidence most
favorable to the judgment, and we neither reweigh the evidence nor judge the
credibility of witnesses. Id. Revocation is appropriate if there is substantial
evidence of probative value to support the trial court’s conclusion that the
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Feb 16 2016, 6:43 am 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 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
Dupree M. Steward, February 16, 2016 Appellant-Defendant, Court of Appeals Case No. 27A02-1505-CR-405 v. Appeal from the Grant Superior Court State of Indiana, The Honorable Dana J. Appellee-Plaintiff. Kenworthy, Judge Trial Court Cause No. 27D02-0607-FB-136
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 27A02-1505-CR-405 | Ferbruary 16, 2016 Page 1 of 7 [1] Dupree Steward appeals the revocation of his probation, raising two issues on
appeal:
I. Did the State present sufficient evidence to support the revocation of Steward’s probation?
II. Did the trial court abuse its discretion in ordering Steward to serve the entirety of his previously suspended sentence?
[2] We affirm.
Facts & Procedural History
[3] On November 15, 2010, Steward pled guilty to class D felony possession of
cocaine and class A misdemeanor possession of marijuana. He received an
aggregate sentence of three years, with one and a half years executed and one
and half years suspended to probation. The executed portion of Steward’s
sentence was to be served on home detention, subject to the approval and
supervision of a community corrections program in either Grant or Marion
County. In its sentencing order, the trial court gave Steward sixty days within
which to seek admittance to such a program. If Steward had not begun serving
his executed sentence on home detention within that time, he was ordered to
appear before the trial court for review on January 24, 2011. Additionally, at
the time of his sentencing, Steward received and signed an order imposing
conditions of probation. In relevant part, those terms provided that Steward
would not commit another criminal offense, would report to his probation
officer as directed, would not possess or consume any controlled substances Court of Appeals of Indiana | Memorandum Decision 27A02-1505-CR-405 | Ferbruary 16, 2016 Page 2 of 7 unless prescribed by a physician, and would submit to drug screens as requested
by his probation officer.
[4] The Grant County Probation Department filed a petition to revoke Steward’s
probation on February 4, 2011. The petition alleged that Steward had violated
his probation by failing to appear for a scheduled meeting with his probation
officer and by failing to provide his probation officer with an accurate address.
On March 3, 2011, the Probation Department filed an addendum to the petition
to revoke in which it alleged that Steward had also violated his probation by
committing another criminal offense, class A misdemeanor driving while
suspended. The addendum further alleged that Steward had failed to appear for
his initial hearing on the new charge and, consequently, a warrant had been
issued for his arrest.
[5] The trial court held a fact-finding hearing on the petition to revoke on March
14, 2011. The trial court found that Steward had violated the terms of his
sentence and probation “by failing to follow through with Home Detention,
failing to report for Court review date, failing to report for probation meetings,
failing to keep his contact information current, failing to maintain contact with
the Grant County Probation Department, [and] being charged with a new
criminal offense[.]” Appellant’s Appendix at 27. As a sanction, the trial court
ordered Steward to serve the executed portion of his sentence in the
Department of Correction instead of on home detention.
Court of Appeals of Indiana | Memorandum Decision 27A02-1505-CR-405 | Ferbruary 16, 2016 Page 3 of 7 [6] After serving the executed portion of his sentence, Steward was released to
probation in November 2011. Upon his release, Steward’s probation was
transferred to Allen County. On March 23, 2012, the Probation Department
filed a petition to revoke Steward’s probation, this time alleging that he had
violated the terms of his probation by testing positive for marijuana on
February 14 and March 12, 2012. At a probation violation hearing held on
April 23, 2012, Steward admitted to the violations and entered into an
agreement with the trial court whereby he would complete twenty hours of
community service and a drug and alcohol assessment in return for being
allowed to continue on probation.
[7] The Probation Department filed yet another petition to revoke Steward’s
probation on August 22, 2012, alleging that Steward had again tested positive
for marijuana. A warrant was issued for his arrest, and when Steward spoke to
his probation officer on the telephone, he indicated that he would be turning
himself in. Steward, however, did not do so and ceased contact with the
Probation Department. On October 1, 2012, the Probation Department filed an
addendum to the petition to revoke in which it alleged that Steward had
violated the terms of his probation by failing to report to probation and to a
drug treatment provider and by missing a drug screen.
[8] Steward’s whereabouts were unknown until two and a half years later, when he
was arrested in Allen County and charged with multiple offenses. When
Steward posted bond and was released in Allen County, he was arrested on the
outstanding warrant in this case.
Court of Appeals of Indiana | Memorandum Decision 27A02-1505-CR-405 | Ferbruary 16, 2016 Page 4 of 7 [9] The trial court conducted a fact-finding hearing on the petition to revoke
Steward’s probation in this case on May 11, 2015. At that time, the State filed
another addendum to the petition, alleging that Steward had violated the terms
of his probation by committing new criminal offenses and by failing to report to
probation since August 2012. At the hearing, Steward admitted to violating his
probation. At the conclusion of the hearing, the trial court found that Steward
had violated his probation by testing positive for marijuana in July 2012 and
failing to report to probation since August 2012. As a result, the trial court
revoked Steward’s probation and ordered him to serve the entirety of his
previously suspended sentence as a sanction. Steward now appeals.
I. Sufficiency of the Evidence
[10] Steward first argues that the State presented insufficient evidence to support the
revocation of his probation. A probation revocation hearing is civil in nature,
and the alleged violation must be proven by the State by a preponderance of the
evidence. Mateyko v. State, 901 N.E.2d 554, 558 (Ind. Ct. App. 2009), trans.
denied. When reviewing a claim of insufficient evidence to support a trial
court’s decision to revoke probation, we consider only the evidence most
favorable to the judgment, and we neither reweigh the evidence nor judge the
credibility of witnesses. Id. Revocation is appropriate if there is substantial
evidence of probative value to support the trial court’s conclusion that the
probationer has violated the terms of probation. Lightcap v. State, 863 N.E.2d
907, 911 (Ind. Ct. App. 2007). It is well settled that the violation of a single
Court of Appeals of Indiana | Memorandum Decision 27A02-1505-CR-405 | Ferbruary 16, 2016 Page 5 of 7 condition of probation is sufficient to support revocation. Gosha v. State, 873
N.E.2d 660, 663 (Ind. Ct. App. 2007).
[11] In light of Steward’s admission to violating the terms of his probation, we find
his claim that the evidence was insufficient to support the revocation of his
probation puzzling, to say the least. Indeed, at the revocation hearing, Steward
testified, “I was aware that I violated probation because I missed an
appointment with a new probation officer that I’d received in Fort Wayne.”
Transcript at 12-13. He further admitted to being aware that a warrant had been
issued for his arrest and that he ignored his probation officer’s directive to turn
himself in. This evidence was more than sufficient to support the trial court’s
finding that Steward violated his probation.
II. Sanctions
[12] Steward also argues that the trial court abused its discretion in ordering him to
serve the entirety of his previously suspended sentence as a sanction for his
probation violation. We review a trial court’s sentencing decision in a
probation revocation proceeding for an abuse of discretion. Jones v. State, 838
N.E.2d 1146, 1148 (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. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). Moreover, “[o]nce a
trial court has exercised its grace by ordering probation rather than
incarceration, the judge should have considerable leeway in deciding how to
proceed.” Id. “If the court finds the defendant has violated a condition of his
Court of Appeals of Indiana | Memorandum Decision 27A02-1505-CR-405 | Ferbruary 16, 2016 Page 6 of 7 probation at any time before the termination of the probationary period, and the
petition to revoke is filed within the probationary period, then the court may
order execution of the sentence that had been suspended.” Gosha, 873 N.E.2d
at 664; see also Ind. Code § 35-38-2-3(h).
[13] Here, upon finding that Steward had violated his probation, the trial court
ordered him to serve the entirety of the previously suspended portion of his
sentence, i.e., one and a half years. In support of his argument that the trial
court’s decision was an abuse of discretion, Steward argues that by the time he
appeared in court on the current probation violation, his probationary period
had been over for almost two years, and that there was no admissible evidence
that he committed any crimes during that time. This argument is absurd. It
was Steward’s own actions in absconding from probation for two and a half
years that caused the delay in disposing of this matter, and his whereabouts
became known only after he was arrested for committing multiple offenses.
The trial court’s decision to impose the entirety of Steward’s previously
suspended sentence as a sanction for his probation violations was amply
supported by the record.
[14] Judgment affirmed.
[15] Robb, J., and Barnes, J., concur.
Court of Appeals of Indiana | Memorandum Decision 27A02-1505-CR-405 | Ferbruary 16, 2016 Page 7 of 7