Eugene White v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: October 18, 2017
• Docket: 02A03-1705-CR-1157
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Oct 18 2017, 9:02 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court

the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Gregory L. Fumarolo Curtis T. Hill, Jr. Fort Wayne, IN Attorney General of Indiana

James B. Martin Deputy Attorney General Indianapolis, IN

IN THE COURT OF APPEALS OF INDIANA

Eugene White, October 18, 2017 Appellant-Defendant, Court of Appeals Case No. 02A03-1705-CR-1157 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Frances C. Appellee-Plaintiff Gull, Judge Trial Court Cause No. 02D05-1304-FB-70

Vaidik, Chief Judge.

Court of Appeals of Indiana | Memorandum Decision 02A03-1705-CR-1157 | October 18, 2017 Page 1 of 4 Case Summary [1] Eugene White appeals the revocation of his probation. We affirm.

Facts and Procedural History [2] In 2013, White pled guilty to burglary and was sentenced to ten years—six

years to serve and four years suspended to probation. He was released to

probation in October 2015. In April 2016, White violated his probation by

failing to report as directed, and in June 2016 he was readmitted to probation

with the added condition of “zero tolerance.” Appellant’s App. Vol. II p. 53.

[3] One morning about two months later, a man in Fort Wayne called police to

report that someone had broken into his house and stolen his TV and other

items. Around the same time, a few blocks away from the house, a detective

saw a man, later identified as White, carrying a TV. Thinking this odd, the

detective approached White, who dropped the TV and ran. The detective

eventually caught White, and it was determined that the TV and other items he

had in his possession had been taken from the burglarized house.

[4] Based on this conduct, the State made two filings: a new criminal case,

charging White with burglary and resisting law enforcement, and a petition to

revoke his probation in the earlier case. A jury found White guilty of the new

charges, and the trial court scheduled a sentencing hearing. The court said that

it would “status” the probation matter at the same hearing, and the State asked

the court to “incorporate the evidence presented at the trial into that status,”

Court of Appeals of Indiana | Memorandum Decision 02A03-1705-CR-1157 | October 18, 2017 Page 2 of 4 which the court agreed to do. Tr. Vol. II pp. 186-87. At that hearing, the court

sentenced White to ten years on the new charges, found that he had violated his

probation on the original burglary charge, and ordered him to serve the four

years of previously suspended time.

[5] White now appeals.

Discussion and Decision [6] White’s first argument on appeal is that the State failed to present sufficient

evidence to prove—under the preponderance-of-the-evidence standard

applicable in probation-revocation proceedings, see Ind. Code § 35-38-2-3(f)—

that he violated his probation. Specifically, he questions the strength of the

State’s evidence that he committed the new burglary, notwithstanding the jury’s

guilty verdict.1 There are two problems with this argument. First, the strength

of that evidence is irrelevant; the mere proof of conviction, regardless of the

strength of the State’s evidence, gave the trial court all it needed to find a

probation violation. See Bane v. State, 579 N.E.2d 1339, 1341 (Ind. Ct. App.

1991) (“The evidence that Bane was convicted of murder was admitted in the

sentencing phase of the hearing, and conclusively established that he committed

a crime for purposes of the immediately subsequent probation revocation

1 In the “Summary of the Argument” section of his brief, White notes that he has filed a separate appeal to challenge the burglary conviction. Nowhere in his brief, however, does he develop an argument as to why that fact should impact our review of the probation revocation.

Court of Appeals of Indiana | Memorandum Decision 02A03-1705-CR-1157 | October 18, 2017 Page 3 of 4 phase.”), trans. denied; see also Henderson v. State, 544 N.E.2d 507, 513 (Ind.

1989) (“The burglary conviction provided grounds supporting the trial court in

its finding that Henderson had violated his probation.”). Second, even if we

disregard the burglary charge and conviction, White concedes that he

committed resisting law enforcement, and that criminal act alone justified

revocation. See Ind. Code § 35-38-2-1(b) (“If the person commits an additional

crime, the court may revoke the probation.”). White has not shown that the

trial court erred by finding a probation violation.

[7] White’s second argument fares no better. He asserts that the trial court should

not have ordered him to serve all four years of his suspended time. Our trial

courts enjoy broad discretion in sanctioning probation violations, Runyon v. State,

939 N.E.2d 613, 618 (Ind. 2010), and the court did not abuse that discretion in

this case. White had been on probation for his original burglary for less than six

months when he committed his first probation violation (failure to report). He

was allowed to remain on probation, but a “zero tolerance” condition was

added. Two months later, he committed his new crimes, including another

burglary. Also, as the trial court noted, White has a criminal record stretching

back to 2008, and less restrictive efforts at rehabilitation (including informal

probation and shorter jail sentences) have failed. The trial court acted well

within its discretion when it ordered White to serve all of his suspended sentence.

[8] Affirmed.

Mathias, J., and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 02A03-1705-CR-1157 | October 18, 2017 Page 4 of 4