Jenkins v. State

956 N.E.2d 146, 2011 Ind. App. LEXIS 1852, 2011 WL 5057633
Indiana Court of Appeals·Decided October 25, 2011·No. 48A04-1102-CR-64·Published·Cited by 23 cases

Opinions

OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Johnny Ray Jenkins appeals the trial court’s order revoking his probation following an evidentiary hearing. Jenkins presents two issues for review:

[148]*1481. Whether the trial court abused its discretion when it revoked his probation.
2. Whether the trial court abused its discretion when it ordered him to serve twelve years of the suspended portion of his sentence.

We affirm.

FACTS AND PROCEDURAL HISTORY

On May 21, 2002, Jenkins pleaded guilty to four counts of criminal confinement, as Class B felonies; one count of attempted arson, as a Class B felony; and one count of domestic battery, as a Class A misdemeanor.1 On February 25, 2004, the trial court sentenced him to twenty years with six years executed and fourteen years suspended to probation.

Four times between June 2006 and August 2008, the State filed petitions alleging probation violations, and each time Jenkins admitted to the alleged violations. On March 3, 2010, the State again filed a notice (amended on December 6, 2010) alleging four additional probation violations: that Jenkins had violated the law; that he had failed to timely report to the probation department; that he had failed to pay court costs; and that he had failed to pay probation fees. At the evidentiary hearing, Jenkins admitted that he had failed to timely report for probation and failed to pay court costs and probation fees. The trial court then found that Jenkins had committed those violations. But the court also found “no violation as to [paragraph] 5a) not to violate the laws of Indiana or the U.S. and failure to behave well in society[.]” Appellant’s App. at 20. As a sanction, the court revoked twelve years of the previously suspended sentence and ordered Jenkins to serve that term “at the Indiana Department of Correction with no return to probation.” Id. Jenkins now appeals.

DISCUSSION AND DECISION

Issue One: Violation of Probation

Jenkins appeals the trial court’s determination that he had violated the terms and conditions of his probation. “[A] trial court’s sentencing decisions for probation violations are renewable using the abuse of discretion standard.” Prewitt v. State, 878 N.E.2d 184, 187 (Ind.2007). As this court has often stated:

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. J.J.C. v. State, 792 N.E.2d 85, 88 (Ind.Ct.App.2003). Violation of a single condition of probation is sufficient to revoke probation. Id. As with other sufficiency issues, we do not reweigh the evidence or judge the credibility of witnesses. Id. We look only to the evidence which supports the judgment and any reasonable inferences flowing therefrom. Id. If there is substantial evidence of probative value to support the trial court’s decision that the probationer committed any violation, revocation of probation is appropriate. Id.

Richardson v. State, 890 N.E.2d 766, 768 (Ind.Ct.App.2008) (quoting T.W. v. State, 864 N.E.2d 361, 364 (Ind.Ct.App.2007), trans. denied). A defendant is not entitled to serve a sentence in a probation program; rather, such placement is a “matter of grace” and a “conditional liberty that is a favor, not a right.” Jones v. [149]*149State, 838 N.E.2d 1146, 1148 (Ind.Ct.App.2005).

Jenkins argues that the State did not present sufficient evidence to show that he had violated the terms of his probation by-failing to pay court costs or probation fees. But Jenkins does not challenge the trial court’s finding that he had violated his probation terms by failing to timely report to the probation department. Again, violation of a single condition of probation is sufficient to revoke probation. Richardson, 890 N.E.2d at 768. Jenkins’ failure to timely report to the probation department, by itself, is sufficient to support the revocation of his probation.

In any event, the evidence is sufficient to support the trial court’s finding that Jenkins violated the terms of his probation by failing to pay court costs and probation fees. Jenkins asserts on appeal that, despite his admission to these violations, the State was required to show that his failure to pay was knowing and intentional. Our supreme court has described the parties’ respective evidentiary burdens regarding allegations of the failure to pay financial obligations in probation revocation cases:

While the State has the burden to prove (a) that a probationer violated a term of probation and (b) that, if the term involved a payment requirement, the failure to pay was reckless, knowing, or intentional, ... it is the defendant probationer’s burden ... to show facts related to an inability to pay and indicating sufficient bona fide efforts to pay so as to persuade the trial court that further imprisonment should not be ordered.

Runyon v. State, 939 N.E.2d 613, 617 (Ind.2010).

Here, Jenkins admitted that he had failed to pay court costs and probation fees, and he points to no mitigating evidence in the record to explain why he had not paid those obligations. To the contrary, the State elicited evidence from him that he was able to find and maintain employment when he was released from the Department of Correction in 2009 and that he was able to “set up” child support for his child. Transcript at 21. And he stated that he planned to quit the “under the table” work he had been doing and return to his original job with Chuck Roes-ler, who owns Broadway Realty in Anderson, where he earned a regular paycheck with taxes deducted. Transcript at 24. On these facts, we cannot say that the trial court abused its discretion when it determined by a preponderance of the evidence that Jenkins violated the terms of his probation by failing to pay court costs and probation fees, in addition to failing to timely report to probation.

Issue Two: Sanction

Jenkins next challenges the sanction ordered as a result of his probation violations. We review a trial court’s sentencing decisions for probation violations under the abuse of discretion standard. Prewitt, 878 N.E.2d at 187. Further, again, a defendant is not entitled to serve a sentence in a probation program; rather, such placement is a “matter of grace” and a “conditional liberty that is a favor, not a right.” Jones, 838 N.E.2d at 1148. Jenkins contends that the trial court abused its discretion when it ordered him to serve the twelve years of the suspended portion of his sentence. We cannot agree.

The State alleged and Jenkins admitted that he had failed to pay court costs and probation fees. He also admitted that he had not reported to probation for more than one year. And he had four prior probation violations between June 2006 and August 2008.

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Jenkins v. State, 956 N.E.2d 146, 2011 Ind. App. LEXIS 1852, 2011 WL 5057633 (Ind. Ct. App. 2011).

956 N.E.2d 146 (Jenkins v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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