FILED Jun 23 2016, 8:35 am MEMORANDUM DECISION CLERK Indiana Supreme Court Court of Appeals Pursuant to Ind. Appellate Rule 65(D), and Tax Court
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 Thomas K. Reynolds Gregory F. Zoeller Lebanon, Indiana Attorney General of Indiana Richard C. Webster Deputy Attorney General Indianapolis, IN
IN THE COURT OF APPEALS OF INDIANA
Eric Byrd, June 23, 2016 Appellant-Defendant, Court of Appeals Case No. 06A01-1509-CR-1509 v. Appeal from the Boone Superior Court State of Indiana, The Honorable Matthew C. Appellee-Plaintiff Kincaid, Judge Trial Court Cause No. 06D01-1407-FD-135
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 06A01-1509-CR-1509 | June 23, 2016 Page 1 of 8 Case Summary [1] Eric M. Byrd appeals the trial court’s revocation of his probation. He contends
that there was insufficient evidence to support the trial court’s finding that he
violated his probation. He also contends that the trial court abused its
discretion in revoking his probation and imposing 1059 days of his previously
suspended sentence. Finding the evidence sufficient and no abuse of discretion,
we affirm.
Facts and Procedural History [2] The State charged Byrd with class D felony theft. On March 9, 2015, Byrd
entered into a plea agreement with the State which provided that he would
receive a three year sentence, with 180 days executed and the remainder
suspended to probation. The agreement provided that Byrd would serve his
executed sentence in community corrections, if he qualified, and that he would
pay restitution to his victims. On June 12, 2015, the trial court accepted the
guilty plea and sentenced Byrd accordingly. During sentencing, Byrd was
advised of the conditions of his probation. Among the conditions of Byrd’s
probation was Term one, which required Byrd to abide by all laws and to advise
probation within twenty-four hours if he was arrested; Term two, which
required Byrd to keep all meetings with probation and community corrections;
and Term thirty-three, which required Byrd to complete all mental health
counseling and follow the recommendations of his mental health care provider.
Court of Appeals of Indiana | Memorandum Decision 06A01-1509-CR-1509 | June 23, 2016 Page 2 of 8 [3] Immediately following the sentencing hearing, Byrd went to the probation
office to complete his probation paper work, determine if he was qualified for
community corrections, and to receive his electronic monitoring bracelet.
Annette Bowden, Director of Operations for Boone County Community
Corrections, met with Byrd and recommended that Byrd receive a mental
health evaluation to be certain that he qualified for community corrections.
Bowden allowed Byrd to review and sign the contract for the monitoring
bracelet. Bowden further inquired regarding the status of Byrd’s driver’s
license, and he told her that it was suspended.
[4] Because Byrd arrived at the probation office shortly before the staff’s lunch, he
was given his probation paperwork and asked to return after the lunch break
was over. Upon returning from lunch, Ashley McClure, the case manager that
met with Byrd to hook up his monitoring bracelet, witnessed him in the driver’s
seat of a vehicle. McClure was present when Byrd revealed that his driver’s
license was suspended, but she also checked his driving record to confirm.
After completing his bracelet hook-up, McClure observed Byrd leaving the
building, again getting into the driver’s seat of a vehicle, and driving away.
McClure called the Lebanon Police Department to report Byrd’s crime. Police
subsequently pulled Byrd over and gave him a citation for driving with a
suspended license. Byrd was charged with driving while suspended under
cause number 06C01-1507-CM-357.
[5] While Byrd was at the probation office, an appointment was set for June 18,
2015, for him to attend a meeting regarding mental health counseling. Byrd
Court of Appeals of Indiana | Memorandum Decision 06A01-1509-CR-1509 | June 23, 2016 Page 3 of 8 failed to attend that meeting. After Byrd failed to attend that meeting, the
mental health professionals attempted to contact him at the phone number he
had provided but the number was invalid.
[6] Also while Byrd was at the probation office, an appointment was set for him to
meet with his probation officer, Suzan Shrock-Gideon, on June 22, 2015. Byrd
failed to appear for that meeting and he did not attempt to reschedule the
meeting.
[7] On June 24, 2015, Boone County Community Corrections filed a notice of
violation alleging that Byrd had violated the terms of his community
corrections by failing to attend his scheduled mental health appointment, and
by receiving a citation for driving while suspended. On June 26, 2015, the
probation department filed a petition to revoke probation also alleging that
Byrd violated his probation by failing to attend his scheduled mental health
appointment, and additionally alleging that Byrd failed to attend a scheduled
appointment with his probation officer. The probation department
subsequently amended its petition to revoke to include an allegation that Byrd
had committed class A misdemeanor driving while suspended.
[8] The trial court held an evidentiary hearing on September 1, 2015. At the time,
Byrd had already served his executed sentence in community corrections. The
trial court found by a preponderance of the evidence that Byrd violated the
conditions of his probation. Accordingly, the trial court revoked Byrd’s
Court of Appeals of Indiana | Memorandum Decision 06A01-1509-CR-1509 | June 23, 2016 Page 4 of 8 probation and ordered him to serve 1059 days of his previously suspended
sentence in the Department of Correction. This appeal ensued.
Discussion and Decision [9] “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). The trial court has been allotted discretion to determine the conditions
of probation, and may revoke probation if the determined conditions are
violated. Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013). We review a trial
court’s decisions to revoke probation for an abuse of discretion. Ripps v. State,
968 N.E.2d 323, 326 (Ind. Ct. App. 2012). An abuse of discretion occurs when
the court’s decision is clearly against the logic and effect of the facts and
circumstances. Prewitt, 878 N.E.2d at 188.
Section 1 – Sufficient evidence supports the trial court’s finding that Byrd violated his probation. [10] Byrd challenges the sufficiency of the evidence to support the trial court’s
finding that he violated his probation. This Court has explained,
A probation revocation proceeding is in the nature of a civil proceeding, and, therefore, the alleged violation need be proved only by a preponderance of the evidence. Violation of a single condition of probation is sufficient to revoke probation.
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FILED Jun 23 2016, 8:35 am MEMORANDUM DECISION CLERK Indiana Supreme Court Court of Appeals Pursuant to Ind. Appellate Rule 65(D), and Tax Court
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 Thomas K. Reynolds Gregory F. Zoeller Lebanon, Indiana Attorney General of Indiana Richard C. Webster Deputy Attorney General Indianapolis, IN
IN THE COURT OF APPEALS OF INDIANA
Eric Byrd, June 23, 2016 Appellant-Defendant, Court of Appeals Case No. 06A01-1509-CR-1509 v. Appeal from the Boone Superior Court State of Indiana, The Honorable Matthew C. Appellee-Plaintiff Kincaid, Judge Trial Court Cause No. 06D01-1407-FD-135
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 06A01-1509-CR-1509 | June 23, 2016 Page 1 of 8 Case Summary [1] Eric M. Byrd appeals the trial court’s revocation of his probation. He contends
that there was insufficient evidence to support the trial court’s finding that he
violated his probation. He also contends that the trial court abused its
discretion in revoking his probation and imposing 1059 days of his previously
suspended sentence. Finding the evidence sufficient and no abuse of discretion,
we affirm.
Facts and Procedural History [2] The State charged Byrd with class D felony theft. On March 9, 2015, Byrd
entered into a plea agreement with the State which provided that he would
receive a three year sentence, with 180 days executed and the remainder
suspended to probation. The agreement provided that Byrd would serve his
executed sentence in community corrections, if he qualified, and that he would
pay restitution to his victims. On June 12, 2015, the trial court accepted the
guilty plea and sentenced Byrd accordingly. During sentencing, Byrd was
advised of the conditions of his probation. Among the conditions of Byrd’s
probation was Term one, which required Byrd to abide by all laws and to advise
probation within twenty-four hours if he was arrested; Term two, which
required Byrd to keep all meetings with probation and community corrections;
and Term thirty-three, which required Byrd to complete all mental health
counseling and follow the recommendations of his mental health care provider.
Court of Appeals of Indiana | Memorandum Decision 06A01-1509-CR-1509 | June 23, 2016 Page 2 of 8 [3] Immediately following the sentencing hearing, Byrd went to the probation
office to complete his probation paper work, determine if he was qualified for
community corrections, and to receive his electronic monitoring bracelet.
Annette Bowden, Director of Operations for Boone County Community
Corrections, met with Byrd and recommended that Byrd receive a mental
health evaluation to be certain that he qualified for community corrections.
Bowden allowed Byrd to review and sign the contract for the monitoring
bracelet. Bowden further inquired regarding the status of Byrd’s driver’s
license, and he told her that it was suspended.
[4] Because Byrd arrived at the probation office shortly before the staff’s lunch, he
was given his probation paperwork and asked to return after the lunch break
was over. Upon returning from lunch, Ashley McClure, the case manager that
met with Byrd to hook up his monitoring bracelet, witnessed him in the driver’s
seat of a vehicle. McClure was present when Byrd revealed that his driver’s
license was suspended, but she also checked his driving record to confirm.
After completing his bracelet hook-up, McClure observed Byrd leaving the
building, again getting into the driver’s seat of a vehicle, and driving away.
McClure called the Lebanon Police Department to report Byrd’s crime. Police
subsequently pulled Byrd over and gave him a citation for driving with a
suspended license. Byrd was charged with driving while suspended under
cause number 06C01-1507-CM-357.
[5] While Byrd was at the probation office, an appointment was set for June 18,
2015, for him to attend a meeting regarding mental health counseling. Byrd
Court of Appeals of Indiana | Memorandum Decision 06A01-1509-CR-1509 | June 23, 2016 Page 3 of 8 failed to attend that meeting. After Byrd failed to attend that meeting, the
mental health professionals attempted to contact him at the phone number he
had provided but the number was invalid.
[6] Also while Byrd was at the probation office, an appointment was set for him to
meet with his probation officer, Suzan Shrock-Gideon, on June 22, 2015. Byrd
failed to appear for that meeting and he did not attempt to reschedule the
meeting.
[7] On June 24, 2015, Boone County Community Corrections filed a notice of
violation alleging that Byrd had violated the terms of his community
corrections by failing to attend his scheduled mental health appointment, and
by receiving a citation for driving while suspended. On June 26, 2015, the
probation department filed a petition to revoke probation also alleging that
Byrd violated his probation by failing to attend his scheduled mental health
appointment, and additionally alleging that Byrd failed to attend a scheduled
appointment with his probation officer. The probation department
subsequently amended its petition to revoke to include an allegation that Byrd
had committed class A misdemeanor driving while suspended.
[8] The trial court held an evidentiary hearing on September 1, 2015. At the time,
Byrd had already served his executed sentence in community corrections. The
trial court found by a preponderance of the evidence that Byrd violated the
conditions of his probation. Accordingly, the trial court revoked Byrd’s
Court of Appeals of Indiana | Memorandum Decision 06A01-1509-CR-1509 | June 23, 2016 Page 4 of 8 probation and ordered him to serve 1059 days of his previously suspended
sentence in the Department of Correction. This appeal ensued.
Discussion and Decision [9] “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). The trial court has been allotted discretion to determine the conditions
of probation, and may revoke probation if the determined conditions are
violated. Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013). We review a trial
court’s decisions to revoke probation for an abuse of discretion. Ripps v. State,
968 N.E.2d 323, 326 (Ind. Ct. App. 2012). An abuse of discretion occurs when
the court’s decision is clearly against the logic and effect of the facts and
circumstances. Prewitt, 878 N.E.2d at 188.
Section 1 – Sufficient evidence supports the trial court’s finding that Byrd violated his probation. [10] Byrd challenges the sufficiency of the evidence to support the trial court’s
finding that he violated his probation. This Court has explained,
A probation revocation proceeding is in the nature of a civil proceeding, and, therefore, the alleged violation need be proved only by a preponderance of the evidence. Violation of a single condition of probation is sufficient to revoke probation. As with other sufficiency issues, we do not reweigh the evidence or judge the credibility of witnesses. We look only to the evidence which supports the judgment and any reasonable inferences flowing therefrom. If there is substantial evidence of probative value to
Court of Appeals of Indiana | Memorandum Decision 06A01-1509-CR-1509 | June 23, 2016 Page 5 of 8 support the trial court's decision that the probationer committed any violation, revocation of probation is appropriate.
Jenkins v. State, 956 N.E.2d 146, 148 (Ind. Ct. App. 2011) (citations omitted),
trans. denied (2012).
[11] Here, the State alleged, and the trial court found, that Byrd violated three
conditions of his probation. Byrd argues that the State presented insufficient
evidence to show that he violated any condition. However, our review of the
record reveals that during the revocation hearing, Byrd effectively admitted that
he violated his probation by committing the new offense of driving while
suspended. See Tr. at 46. As stated above, violation of a single condition of
probation is sufficient to support the revocation of probation. See Jenkins, 956
N.E.2d at 148. Thus, this violation, by itself, is sufficient to support the
revocation of Byrd’s probation and we need not address his additional
sufficiency of the evidence claims.
[12] In any event, the evidence is sufficient to support the trial court’s finding that
Byrd also violated his probation by failing to keep all meetings with his
probation officer and by failing to complete mental health counseling. Byrd’s
probation officer testified that, immediately following sentencing on June 12,
2015, Byrd personally appeared at the probation office and was assigned an
appointment time on June 22, 2015, to meet with her. Byrd failed to attend the
meeting. Similarly, the record is undisputed that Byrd had an appointment for
June 18, 2015, to meet with mental health professionals, but he failed to attend
that meeting and could not be reached by phone. Although Byrd directs us to Court of Appeals of Indiana | Memorandum Decision 06A01-1509-CR-1509 | June 23, 2016 Page 6 of 8 his self-serving testimony in which he gives excuses for his failures, this is
simply a request for us to reweigh the evidence, which we may not do. The
State presented sufficient evidence to support the trial court’s determination by
a preponderance of the evidence that Byrd violated his probation by committing
a new crime, failing to keep all meetings with his probation officer, and failing
to complete mental health counseling.
Section 2 – The trial court did not abuse its discretion in revoking Byrd’s probation and ordering him to serve 1059 days of his previously suspended sentence. [13] Probation revocation involves a two-step process. “First, the court must make a
factual determination that a violation of a condition of probation actually
occurred. If a violation is proven, then the trial court must determine if the
violation warrants revocation of the probation.” Vernon v. State, 903 N.E.2d
533, 537 (Ind. Ct. App. 2009), trans. denied. Where there is substantial evidence
of probative value that a defendant violated any of the terms of his probation,
we will uphold the trial court’s revocation decision. Woods v. State, 892 N.E.2d
637, 639 (Ind. 2008). If the court determines probation has been violated it may
continue the person on probation, extend the probationary period for no more
than a year beyond the original probationary period, or order execution of all or
part of the previously suspended sentence at the initial hearing. Ind. Code § 35-
38-2-3(h). Where a trial court has exercised its grace in granting a defendant
probation rather than incarceration, it has considerable leeway in deciding how
to proceed when the defendant then violates the conditions of his probation.
Court of Appeals of Indiana | Memorandum Decision 06A01-1509-CR-1509 | June 23, 2016 Page 7 of 8 Prewitt, 878 N.E.2d at 188. We review a trial court’s sentencing decision for
probation violations for an abuse of discretion. Heaton, 984 N.E.2d at 616.
[14] Byrd’s argument that the trial court abused its discretion in revoking his
probation is premised upon his claim of insufficient evidence, which we have
already decided against him. Thus, we find no abuse of discretion in the trial
court’s decision to revoke his probation. Still, Byrd contends that imposition of
virtually his entire suspended sentence was unwarranted given the nature of his
violations and other mitigating circumstances, such as the fact that this was his
first time violating his probation. However, the record indicates that Byrd
violated the conditions of his probation three times within a mere ten days of
his sentencing. Indeed, one of his violations occurred within hours of
sentencing. The object of probationary terms and conditions is to ensure that
probation serves as a period of genuine rehabilitation. By his behavior, Byrd
has demonstrated that he is not committed to abide by the terms of his
probation. Under the circumstances, we cannot say that the trial court abused
its discretion in revoking Byrd’s probation and ordering him to serve 1059 days
of his previously suspended sentence.
[15] Affirmed.
Najam, J., and Robb, J., concur.
Court of Appeals of Indiana | Memorandum Decision 06A01-1509-CR-1509 | June 23, 2016 Page 8 of 8