MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Aug 06 2020, 10:52 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jane Ann Noblitt Curtis T. Hill, Jr. Columbus, Indiana Attorney General Ellen H. Meilaender Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Gerardo Hurtado, August 6, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-653 v. Appeal from the Bartholomew Superior Court State of Indiana, The Honorable Jack A. Tandy, Appellee-Plaintiff Senior Judge Trial Court Cause No. 03D02-1703-F6-1536
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-653| August 6, 2020 Page 1 of 7 Case Summary [1] Gerardo Hurtado appeals the revocation of his probation, arguing that the trial
court abused its discretion in finding that he violated the terms of his probation.
Finding that the trial court did not abuse its discretion, we affirm.
Facts and Procedural History [2] On August 16, 2019, Hurtado was convicted of level 6 felony resisting law
enforcement. 1 On September 30, 2019, the trial court sentenced Hurtado to two
years, all suspended to probation except for time served. The terms of
Hurtado’s probation included that he was to obey all laws of the State of
Indiana and report to his probation officer at reasonable times as directed. As a
special term of probation, Hurtado was required to obtain a mental health
evaluation from a licensed psychologist/psychiatrist within sixty days, submit it
to his probation officer, and comply with the treatment recommendations.
[3] On October 4, 2019, Hurtado was released from jail and reported to the
probation office. His initial orientation meeting was scheduled for October 24.
He arrived late and missed the orientation but met with his probation officer,
who rescheduled his orientation for the following day. Hurtado arrived late for
that appointment as well and was unable to successfully complete orientation.
He did meet with his probation officer for forty minutes. Pursuant to Indiana
1 Hurtado’s conviction was affirmed on appeal. Hurtado v. State, No. 19A-CR-2345, 2020 WL 2188775, (Ind. Ct. App. May 6, 2020).
Court of Appeals of Indiana | Memorandum Decision 20A-CR-653| August 6, 2020 Page 2 of 7 Code Sections 10-13-6-10 and 35-38-1-27, Hurtado was required to provide a
DNA sample, 2 and his probation officer was prepared to collect his DNA
sample. Hurtado would not provide the DNA sample, saying that he was “not
giving anymore [sic] fingerprints or DNA to this State.” Tr. Vol. 2 at 7. 3
[4] The probation officer rescheduled Hurtado’s orientation for October 31 at 1:30
p.m. Hurtado failed to report and called his probation officer at 1:36 p.m. to
inform her that he was unable to obtain transportation because his mother was
out of town. The probation officer rescheduled his appointment for November
13, but he failed to report or call in that day. Hurtado did not submit a mental
health evaluation to his probation officer.
[5] On December 4, 2019, the State filed a petition to revoke Hurtado’s probation,
alleging that he violated the conditions of probation by failing to report to his
probation officer as directed, failing to submit to a mental health evaluation,
and failing to provide a DNA sample pursuant to Indiana Code Sections 10-13-
6-10 and 35-38-1-27. Appellant’s App. Vol. 2 at 31. At the factfinding hearing,
2 Indiana Code Section 10-13-6-10 requires a person convicted of a felony after June 20, 2005, whether or not the person is sentenced to a term of imprisonment, to provide a DNA sample. Section 35-38-1-27 requires a court imposing a sentence that does not involve a commitment to the Department of Correction to require a person described in Section 10-13-6-10 and who has not previously provided a DNA sample to provide a DNA sample as a condition of the sentence. In addition, Section 35-38-1-27(d) provides, “A person’s failure to provide a DNA sample is grounds for revocation of the person’s probation, community corrections placement, or other conditional release.” 3 Hurtado labeled both the table of contents for the transcript of the factfinding hearing and the transcript itself as volume 1 of 2. We cite the transcript as volume 2.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-653| August 6, 2020 Page 3 of 7 Hurtado and his probation officer testified. When Hurtado’s attorney asked
him if he would submit to a DNA sample, Hurtado replied,
If I absolutely have to then when this is all settled properly, when I really get a fair trial, and a true investigation to what really happened, and they say just like the officers told me, that your finger prints will be removed from the database and my DNA will be removed from the database, when this is settled properly, then I’ll provide one.
Tr. Vol. 2 at 10.
[6] At the conclusion of the hearing, the trial court found that Hurtado had violated
the terms of probation as alleged, ordered him to serve the remainder of his
sentence in the Bartholomew County Jail, and determined that his probation
would terminate unsuccessfully upon completion of his jail time. This appeal
ensued.
Discussion and Decision [7] Hurtado maintains that the trial court abused its discretion in determining that
he violated the terms of his probation. 4 We observe that probation is a matter of
grace left to the trial court’s sound discretion, not a right to which a criminal
4 The State contends that Hurtado’s appeal is moot because he has likely been released from jail by this time and cannot be returned to probation. Regardless of whether he can be returned to probation, the State’s argument ignores the trial court’s determination that Hurtado’s probation would be terminated unsuccessfully upon his completion of jail time. That determination will become part of his permanent criminal record. If we were to reverse the trial court’s finding that he violated his probation, as he requests, that determination would be removed from his record. As such, we decline to find that his appeal is moot.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-653| August 6, 2020 Page 4 of 7 defendant is entitled. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). The
trial court determines the conditions of probation and may revoke probation if
the probationer violates those conditions. Id. Probation revocation is a two-
step process, wherein the trial court first makes a factual determination as to
whether the probationer violated the terms of his probation. Woods v. State, 892
N.E.2d 637, 640 (Ind. 2008). Then, if a violation is found, the court determines
whether the violation warrants revocation. Id.
[8] Because a probation revocation proceeding is civil in nature, the State need only
prove the alleged probation violation by a preponderance of the evidence.
Holmes v. State, 923 N.E.2d 479, 485 (Ind. Ct. App. 2010). Proof of a single
violation is sufficient to permit a trial court to revoke probation. Beeler v. State,
959 N.E.2d 828, 830 (Ind. Ct. App. 2011), trans. denied. We review a trial
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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 Aug 06 2020, 10:52 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jane Ann Noblitt Curtis T. Hill, Jr. Columbus, Indiana Attorney General Ellen H. Meilaender Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Gerardo Hurtado, August 6, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-653 v. Appeal from the Bartholomew Superior Court State of Indiana, The Honorable Jack A. Tandy, Appellee-Plaintiff Senior Judge Trial Court Cause No. 03D02-1703-F6-1536
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-653| August 6, 2020 Page 1 of 7 Case Summary [1] Gerardo Hurtado appeals the revocation of his probation, arguing that the trial
court abused its discretion in finding that he violated the terms of his probation.
Finding that the trial court did not abuse its discretion, we affirm.
Facts and Procedural History [2] On August 16, 2019, Hurtado was convicted of level 6 felony resisting law
enforcement. 1 On September 30, 2019, the trial court sentenced Hurtado to two
years, all suspended to probation except for time served. The terms of
Hurtado’s probation included that he was to obey all laws of the State of
Indiana and report to his probation officer at reasonable times as directed. As a
special term of probation, Hurtado was required to obtain a mental health
evaluation from a licensed psychologist/psychiatrist within sixty days, submit it
to his probation officer, and comply with the treatment recommendations.
[3] On October 4, 2019, Hurtado was released from jail and reported to the
probation office. His initial orientation meeting was scheduled for October 24.
He arrived late and missed the orientation but met with his probation officer,
who rescheduled his orientation for the following day. Hurtado arrived late for
that appointment as well and was unable to successfully complete orientation.
He did meet with his probation officer for forty minutes. Pursuant to Indiana
1 Hurtado’s conviction was affirmed on appeal. Hurtado v. State, No. 19A-CR-2345, 2020 WL 2188775, (Ind. Ct. App. May 6, 2020).
Court of Appeals of Indiana | Memorandum Decision 20A-CR-653| August 6, 2020 Page 2 of 7 Code Sections 10-13-6-10 and 35-38-1-27, Hurtado was required to provide a
DNA sample, 2 and his probation officer was prepared to collect his DNA
sample. Hurtado would not provide the DNA sample, saying that he was “not
giving anymore [sic] fingerprints or DNA to this State.” Tr. Vol. 2 at 7. 3
[4] The probation officer rescheduled Hurtado’s orientation for October 31 at 1:30
p.m. Hurtado failed to report and called his probation officer at 1:36 p.m. to
inform her that he was unable to obtain transportation because his mother was
out of town. The probation officer rescheduled his appointment for November
13, but he failed to report or call in that day. Hurtado did not submit a mental
health evaluation to his probation officer.
[5] On December 4, 2019, the State filed a petition to revoke Hurtado’s probation,
alleging that he violated the conditions of probation by failing to report to his
probation officer as directed, failing to submit to a mental health evaluation,
and failing to provide a DNA sample pursuant to Indiana Code Sections 10-13-
6-10 and 35-38-1-27. Appellant’s App. Vol. 2 at 31. At the factfinding hearing,
2 Indiana Code Section 10-13-6-10 requires a person convicted of a felony after June 20, 2005, whether or not the person is sentenced to a term of imprisonment, to provide a DNA sample. Section 35-38-1-27 requires a court imposing a sentence that does not involve a commitment to the Department of Correction to require a person described in Section 10-13-6-10 and who has not previously provided a DNA sample to provide a DNA sample as a condition of the sentence. In addition, Section 35-38-1-27(d) provides, “A person’s failure to provide a DNA sample is grounds for revocation of the person’s probation, community corrections placement, or other conditional release.” 3 Hurtado labeled both the table of contents for the transcript of the factfinding hearing and the transcript itself as volume 1 of 2. We cite the transcript as volume 2.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-653| August 6, 2020 Page 3 of 7 Hurtado and his probation officer testified. When Hurtado’s attorney asked
him if he would submit to a DNA sample, Hurtado replied,
If I absolutely have to then when this is all settled properly, when I really get a fair trial, and a true investigation to what really happened, and they say just like the officers told me, that your finger prints will be removed from the database and my DNA will be removed from the database, when this is settled properly, then I’ll provide one.
Tr. Vol. 2 at 10.
[6] At the conclusion of the hearing, the trial court found that Hurtado had violated
the terms of probation as alleged, ordered him to serve the remainder of his
sentence in the Bartholomew County Jail, and determined that his probation
would terminate unsuccessfully upon completion of his jail time. This appeal
ensued.
Discussion and Decision [7] Hurtado maintains that the trial court abused its discretion in determining that
he violated the terms of his probation. 4 We observe that probation is a matter of
grace left to the trial court’s sound discretion, not a right to which a criminal
4 The State contends that Hurtado’s appeal is moot because he has likely been released from jail by this time and cannot be returned to probation. Regardless of whether he can be returned to probation, the State’s argument ignores the trial court’s determination that Hurtado’s probation would be terminated unsuccessfully upon his completion of jail time. That determination will become part of his permanent criminal record. If we were to reverse the trial court’s finding that he violated his probation, as he requests, that determination would be removed from his record. As such, we decline to find that his appeal is moot.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-653| August 6, 2020 Page 4 of 7 defendant is entitled. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). The
trial court determines the conditions of probation and may revoke probation if
the probationer violates those conditions. Id. Probation revocation is a two-
step process, wherein the trial court first makes a factual determination as to
whether the probationer violated the terms of his probation. Woods v. State, 892
N.E.2d 637, 640 (Ind. 2008). Then, if a violation is found, the court determines
whether the violation warrants revocation. Id.
[8] Because a probation revocation proceeding is civil in nature, the State need only
prove the alleged probation violation by a preponderance of the evidence.
Holmes v. State, 923 N.E.2d 479, 485 (Ind. Ct. App. 2010). Proof of a single
violation is sufficient to permit a trial court to revoke probation. Beeler v. State,
959 N.E.2d 828, 830 (Ind. Ct. App. 2011), trans. denied. We review a trial
court’s probation violation determination using an abuse of discretion standard.
Jackson v. State, 6 N.E.3d 1040, 1042 (Ind. Ct. App. 2014). An abuse of
discretion occurs where the trial court’s decision is clearly against the logic and
effect of the facts and circumstances before it or where the trial court
misinterprets the law. Id. In determining whether a trial court has abused its
discretion, we neither reweigh evidence nor judge witness credibility. Ripps v.
State, 968 N.E.2d 323, 326 (Ind. Ct. App. 2012). Instead, we consider
conflicting evidence in the light most favorable to the trial court’s ruling. Mogg
v. State, 918 N.E.2d 750, 755 (Ind. Ct. App. 2009).
[9] Turning first to Hurtado’s failure to report to his probation officer as directed,
the record shows that he was late for his orientation appointments on October Court of Appeals of Indiana | Memorandum Decision 20A-CR-653| August 6, 2020 Page 5 of 7 24 and 25 and therefore was unable to successfully complete orientation. He
missed his appointments on October 31 and on November 13. He failed to
inform his probation officer in advance that he would not be able to attend the
October 31 appointment and missed the November 13 appointment without
any attempt to contact his probation officer. He appears to argue that his
tardiness and missed appointments should be excused due to alleged
transportation issues. This argument is merely an invitation to reweigh
evidence, which we must decline.
[10] As for Hurtado’s failure to provide a DNA sample as required by statute, he
contends that he did not refuse but wanted to wait until he could speak with his
appellate attorney. His probation officer testified that Hurtado refused to give
“anymore [sic] fingerprints or DNA to this State.” Tr. Vol. 2 at 7. Again, this
is an invitation to reweigh the evidence, which we must decline. Indiana Code
Section 35-38-1-27 provides that a person’s failure to provide a DNA sample is
grounds for revocation of the person’s probation.
[11] Finally, Hurtado asserts that his probation was scheduled to last 304 days, but
he did not have sufficient opportunity to submit to a mental health evaluation
because his probation was cut short by the petition to revoke. His probation
may have been scheduled to last 304 days, but Hurtado was required to obtain a
mental health evaluation within sixty days of the commencement of his
probationary term. He did not do so. We conclude that the trial court acted
within its discretion in determining that Hurtado violated the terms of his
probation. Accordingly, we affirm.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-653| August 6, 2020 Page 6 of 7 [12] Affirmed.
Robb, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-653| August 6, 2020 Page 7 of 7