Jeffrey S. Burke v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: September 5, 2014
• Docket: 52A02-1402-CR-64
• Status: Unpublished

Opinion

Pursuant to Ind.Appellate Rule 65(D), Sep 05 2014, 10:12 am 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:

MARK SMALL GREGORY F. ZOELLER Indianapolis, Indiana Attorney General of Indiana

KATHERINE MODESITT COOPER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

JEFFREY S. BURKE, ) ) Appellant-Defendant, ) ) vs. ) No.52A02-1402-CR-64 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE MIAMI CIRCUIT COURT The Honorable Timothy P. Spahr, Judge Cause No. 52C01-0610-FC-197

September 5, 2014

MEMORANDUM DECISION - NOT FOR PUBLICATION

FRIEDLANDER, Judge Jeffrey S. Burke appeals following the revocation of his probation, raising the

following restated issue for our review: Did the trial court’s imposition of Burke’s

previously suspended sentence, based in part on his failure to pay court costs and

probation-user fees, without awarding a credit toward the accrued costs and fees violate

double jeopardy principles?

We affirm.

In 2007, Burke pleaded guilty to forgery as a class C felony. He was sentenced to

four years, given credit for time served, and the remaining balance of three years and 299

days was suspended to probation. The State filed its first petition to modify or revoke

Burke’s probation in December 2010, but Burke failed to appear at the hearing on the

petition. A warrant was issued for Burke’s arrest at that time, but the warrant was not

served until October 2013. In the interim, the State had filed two amended petitions to

revoke Burke’s probation, and it filed one more amended petition after the warrant was

served. The petitions alleged, in pertinent part, that Burke had violated his probation by

committing multiple new offenses and failing to pay probation-user fees and court costs.

At a hearing on December 19, 2013, Burke admitted to violating his probation by

committing the new offense of obtaining a controlled substance by fraud or deceit and by

failing to pay probation-user fees and court costs. On January 16, 2014, the trial court

revoked Burke’s probation and ordered him to serve the entirety of his previously

suspended sentence. Additionally, the trial court ordered that Burke’s outstanding court

costs and probation-user fees, totaling $2,064, be reduced to a judgment against Burke in

favor of the State. Burke now appeals.

2 Burke makes no argument that the trial court abused its discretion by revoking his

probation or ordering him to serve the entirety of his previously suspended sentence.

Burke’s sole argument on appeal is that “[i]mposition of the suspended sentence and

payment of costs and fees violates principles of double jeopardy.” Appellant’s Brief at 8

(emphasis in original). The double jeopardy clauses of both the federal and state

constitutions prohibit multiple punishments for the same offense. Wilcox v. State, 748

N.E.2d 906 (Ind. Ct. App. 2001), trans. denied. Burke argues that by being required to

serve the remainder of his suspended sentence and pay his already-accrued court costs

and probation-user fees, he is being twice punished for a single probation violation, i.e.,

his failure to pay costs and fees.

Burke’s argument is without merit. As this court has explained:

[A] violation of a condition of probation does not constitute an offense within the purview of double jeopardy analysis. Revocation proceedings are based upon violations of probation conditions rather than upon the commission of a crime, and the finding of whether a defendant has complied with these conditions is a question of fact and not an adjudication of guilt. Moreover, because double jeopardy protection applies only to criminal proceedings and probation revocation proceedings are not criminal proceedings, violations must be proven only by a preponderance of the evidence.

McQueen v. State, 862 N.E.2d 1237, 1243 (Ind. Ct. App. 2007) (citations omitted).

Moreover, the court costs and probation-user fees had already accrued prior to the

revocation of Burke’s probation. Accordingly, the requirement that he pay these costs

3 and fees was clearly not a punishment for Burke’s probation violation. Thus, principles

of double jeopardy are not implicated here.1

Judgment affirmed.

VAIDIK, C.J., and MAY, J., concur.

1 Burke quotes Bearden v. Georgia, 461 U.S. 660 (1983), at length, noting that the U.S. Supreme Court held that when probation is revoked for failure to pay fines or restitution, the court must inquire into the reasons for nonpayment, and where the probationer is unable to pay, consider alternative means of punishment other than imprisonment. Burke has made no argument that he was unable to pay the outstanding costs and fees—indeed, he testified that he had “more than enough money to pay” them. Transcript at 30. Moreover, Bearden v. Georgia did not address issues of double jeopardy in any way. We are therefore at a loss as to the relevance of the quoted language to Burke’s appeal.