Pursuant to Ind. Appellate Rule 65(D), 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:
DERICK W. STEELE GREGORY F. ZOELLER Deputy Public Defender Attorney General of Indiana Kokomo, Indiana RICHARD C. WEBSTER Deputy Attorney General Indianapolis, Indiana
Mar 25 2013, 9:32 am
IN THE COURT OF APPEALS OF INDIANA
JESSE R. LUCKEY, ) ) Appellant-Defendant, ) ) vs. ) No. 34A04-1208-CR-399 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE HOWARD SUPERIOR COURT The Honorable William C. Menges, Jr., Judge Cause Nos. 34D01-0803-FD-147 and 34D01-0904-FD-387
March 25, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
KIRSCH, Judge Jesse R. Luckey (“Luckey”) appeals the trial court’s order revoking his probation
in two underlying cases arising from his convictions for possession of a controlled
substance1 as a Class D felony, possession of marijuana2 as a Class D felony, and
possession of paraphernalia3 as a Class A misdemeanor. In this appeal, Luckey contends
that the trial court utilized an improper burden of proof and that the evidence was not
sufficient to establish that he had violated the conditions of his probation by a
preponderance of the evidence.
We reverse.
FACTS AND PROCEDURAL HISTORY
In January 2009, Luckey pleaded guilty to possession of a controlled substance
under cause number 34D01-0803-FD-147 (“Cause No. 147”) and was sentenced to three
years with one hundred twenty days executed, sixty days on home detention, and the
balance suspended to probation. In April 2009, Luckey was charged with possession of
marijuana and possession of paraphernalia under cause number 34D01-0904-FD-387
(“Cause No. 387”). A petition to revoke his probation in Cause No. 147 was also filed.
In February 2010 after he admitted to violating his probation, Luckey was ordered to
serve eighteen months of his previously suspended sentence in Cause No. 147. In Cause
No. 387, Luckey pleaded guilty and was sentenced to one year suspended to probation.
1 See Ind. Code § 35-48-4-7(a). 2 See Ind. Code § 35-48-4-11. 3 See Ind. Code § 35-48-4-8.3.
2 In February 2012, Luckey was charged with criminal mischief as a Class A
misdemeanor in cause number 34D03-1202-CM-143 (“Cause No. 143”), and in April,
2012, he was charged with attempted murder as a Class A felony and aiding, inducing or
causing aggravated battery as a Class B felony in cause number 34D04-1204-MR-57
(“Cause No. 057”). As a result of these new charges, petitions to revoke Luckey’s
probation were filed in Cause Nos. 147 and 387.
The trial court held a combined hearing on the two revocation petitions in July
2012. At the hearing, the State introduced the Chronological Case Summaries (“CCS”)
from Cause Nos. 143 and 057. Following the conclusion of the hearing, the trial court
entered an amended order in both Cause Nos. 147 and 387 finding “that the Defendant
did violate his probation as alleged,” revoking Luckey’s probation in both cases and
ordering him to serve the time remaining on his previously suspended sentences.
DISCUSSION AND DECISION
Luckey maintains that the trial court abused its discretion in revoking his
probation. Specifically, Luckey argues that the trial court applied an improper standard
of probable cause to determine that he had committed a new offense and that it should
have utilized preponderance of the evidence as the proper standard. The State contends
that the trial court properly applied a probable cause standard.4
The decision to revoke probation is within the sound discretion of the trial court,
and its decision is reviewed on appeal for abuse of that discretion. Ripps v. State, 968
4 We note that the State filed its appellate brief before our Supreme Court handed down Heaton v. State, 48S02-1206-CR-350, 2013 WL 812402 (Ind. Mar. 5, 2013).
3 N.E.2d 323, 326 (Ind. Ct. App. 2012) (citing Cooper v. State, 917 N.E.2d 667, 671 (Ind.
2009) (citations omitted)). An abuse of discretion occurs when the decision is clearly
against the logic and effect of the facts and circumstances before the court. Id. (citing
Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007)). In order to revoke probation, the trial
court must make a factual determination that a violation of a condition of probation
actually occurred, and if a violation is found, then the trial court must determine the
appropriate sanctions for the violation. Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008).
The due process requirements of a probation revocation proceeding are well-
established: Probation is a favor granted by the State, not a right to which a criminal
defendant is entitled. Terrell v. State, 886 N.E.2d 98, 100 (Ind. Ct. App. 2008) (citing
Parker v. State, 676 N.E.2d 1083, 1085 (Ind. Ct. App. 1997)), trans. denied. However,
once the State grants that favor, it cannot simply revoke the privilege at its discretion. Id.
Probation revocation implicates a defendant’s liberty interest, which entitles him to some
procedural due process. Id. (citing Parker, 676 N.E.2d at 1085 (citing Morrissey v.
Brewer, 408 U.S. 471, 482 (1972))). Because probation revocation does not deprive a
defendant of his absolute liberty, but only his conditional liberty, he is not entitled to the
full due process rights afforded a defendant in a criminal proceeding. Id.
Due process requires a written statement by the fact finder regarding the evidence
relied upon and the reasons for revoking probation. Id. at 101. This requirement is
imposed on trial courts to promote accurate fact finding and to ensure the accurate review
of revocation decisions. Hubbard v. State, 683 N.E.2d 618, 620-21 (Ind. Ct. App. 1997).
The rationale underlying the writing requirement in probation revocation proceedings has
4 its genesis in Morrissey where the United States Supreme Court concluded that while an
informal hearing structure is permissible for parole revocation proceedings, it still must
comport with basic notions of due process, including a written statement by the fact
finders as to the evidence relied on and the reasons for revoking parole. 408 U.S. at 488-
89 (emphasis added). In Gagnon v. Scarpelli, the Supreme Court applied the Morrissey
holding to probation revocation proceedings, holding that for purposes of due process
analysis, the two proceedings are the same. 411 U.S. 778, 782 (1973). Our Supreme
Court in Medicus v.
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Pursuant to Ind. Appellate Rule 65(D), 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:
DERICK W. STEELE GREGORY F. ZOELLER Deputy Public Defender Attorney General of Indiana Kokomo, Indiana RICHARD C. WEBSTER Deputy Attorney General Indianapolis, Indiana
Mar 25 2013, 9:32 am
IN THE COURT OF APPEALS OF INDIANA
JESSE R. LUCKEY, ) ) Appellant-Defendant, ) ) vs. ) No. 34A04-1208-CR-399 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE HOWARD SUPERIOR COURT The Honorable William C. Menges, Jr., Judge Cause Nos. 34D01-0803-FD-147 and 34D01-0904-FD-387
March 25, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
KIRSCH, Judge Jesse R. Luckey (“Luckey”) appeals the trial court’s order revoking his probation
in two underlying cases arising from his convictions for possession of a controlled
substance1 as a Class D felony, possession of marijuana2 as a Class D felony, and
possession of paraphernalia3 as a Class A misdemeanor. In this appeal, Luckey contends
that the trial court utilized an improper burden of proof and that the evidence was not
sufficient to establish that he had violated the conditions of his probation by a
preponderance of the evidence.
We reverse.
FACTS AND PROCEDURAL HISTORY
In January 2009, Luckey pleaded guilty to possession of a controlled substance
under cause number 34D01-0803-FD-147 (“Cause No. 147”) and was sentenced to three
years with one hundred twenty days executed, sixty days on home detention, and the
balance suspended to probation. In April 2009, Luckey was charged with possession of
marijuana and possession of paraphernalia under cause number 34D01-0904-FD-387
(“Cause No. 387”). A petition to revoke his probation in Cause No. 147 was also filed.
In February 2010 after he admitted to violating his probation, Luckey was ordered to
serve eighteen months of his previously suspended sentence in Cause No. 147. In Cause
No. 387, Luckey pleaded guilty and was sentenced to one year suspended to probation.
1 See Ind. Code § 35-48-4-7(a). 2 See Ind. Code § 35-48-4-11. 3 See Ind. Code § 35-48-4-8.3.
2 In February 2012, Luckey was charged with criminal mischief as a Class A
misdemeanor in cause number 34D03-1202-CM-143 (“Cause No. 143”), and in April,
2012, he was charged with attempted murder as a Class A felony and aiding, inducing or
causing aggravated battery as a Class B felony in cause number 34D04-1204-MR-57
(“Cause No. 057”). As a result of these new charges, petitions to revoke Luckey’s
probation were filed in Cause Nos. 147 and 387.
The trial court held a combined hearing on the two revocation petitions in July
2012. At the hearing, the State introduced the Chronological Case Summaries (“CCS”)
from Cause Nos. 143 and 057. Following the conclusion of the hearing, the trial court
entered an amended order in both Cause Nos. 147 and 387 finding “that the Defendant
did violate his probation as alleged,” revoking Luckey’s probation in both cases and
ordering him to serve the time remaining on his previously suspended sentences.
DISCUSSION AND DECISION
Luckey maintains that the trial court abused its discretion in revoking his
probation. Specifically, Luckey argues that the trial court applied an improper standard
of probable cause to determine that he had committed a new offense and that it should
have utilized preponderance of the evidence as the proper standard. The State contends
that the trial court properly applied a probable cause standard.4
The decision to revoke probation is within the sound discretion of the trial court,
and its decision is reviewed on appeal for abuse of that discretion. Ripps v. State, 968
4 We note that the State filed its appellate brief before our Supreme Court handed down Heaton v. State, 48S02-1206-CR-350, 2013 WL 812402 (Ind. Mar. 5, 2013).
3 N.E.2d 323, 326 (Ind. Ct. App. 2012) (citing Cooper v. State, 917 N.E.2d 667, 671 (Ind.
2009) (citations omitted)). An abuse of discretion occurs when the decision is clearly
against the logic and effect of the facts and circumstances before the court. Id. (citing
Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007)). In order to revoke probation, the trial
court must make a factual determination that a violation of a condition of probation
actually occurred, and if a violation is found, then the trial court must determine the
appropriate sanctions for the violation. Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008).
The due process requirements of a probation revocation proceeding are well-
established: Probation is a favor granted by the State, not a right to which a criminal
defendant is entitled. Terrell v. State, 886 N.E.2d 98, 100 (Ind. Ct. App. 2008) (citing
Parker v. State, 676 N.E.2d 1083, 1085 (Ind. Ct. App. 1997)), trans. denied. However,
once the State grants that favor, it cannot simply revoke the privilege at its discretion. Id.
Probation revocation implicates a defendant’s liberty interest, which entitles him to some
procedural due process. Id. (citing Parker, 676 N.E.2d at 1085 (citing Morrissey v.
Brewer, 408 U.S. 471, 482 (1972))). Because probation revocation does not deprive a
defendant of his absolute liberty, but only his conditional liberty, he is not entitled to the
full due process rights afforded a defendant in a criminal proceeding. Id.
Due process requires a written statement by the fact finder regarding the evidence
relied upon and the reasons for revoking probation. Id. at 101. This requirement is
imposed on trial courts to promote accurate fact finding and to ensure the accurate review
of revocation decisions. Hubbard v. State, 683 N.E.2d 618, 620-21 (Ind. Ct. App. 1997).
The rationale underlying the writing requirement in probation revocation proceedings has
4 its genesis in Morrissey where the United States Supreme Court concluded that while an
informal hearing structure is permissible for parole revocation proceedings, it still must
comport with basic notions of due process, including a written statement by the fact
finders as to the evidence relied on and the reasons for revoking parole. 408 U.S. at 488-
89 (emphasis added). In Gagnon v. Scarpelli, the Supreme Court applied the Morrissey
holding to probation revocation proceedings, holding that for purposes of due process
analysis, the two proceedings are the same. 411 U.S. 778, 782 (1973). Our Supreme
Court in Medicus v. State, 664 N.E.2d 1163 (Ind. 1996), applied the Gagnon rule to
probation revocation proceedings. Id. at 1164-65.
Here, the trial court failed to enter findings of fact regarding the evidence upon
which it relied and its reasons for revoking probation. Rather, it merely made the
conclusory finding that the defendant violated the conditions of his probation. Although
clearly not the preferred way of fulfilling the writing requirement, we have held that
placing the transcript of the evidentiary hearing in the record is sufficient if it contains a
clear statement of the trial court’s reasons for revoking probation. Clark v. State, 580
N.E.2d 708, 711 (Ind. Ct. App. 1991). In the present case, Luckey does not raise an issue
relating to the trial court’s failure to enter written findings setting out the evidence and its
rationale for ordering revocation. Further, it is clear from our review of the record that
the trial court determined that the issue before the trial court was narrow and the evidence
upon which the trial court relied was minimal and not open to varying interpretations.
Accordingly, in the interests of judicial economy, we elect to determine this matter on the
merits rather than remand for the entry of specific findings.
5 On March 5, 2013, our Supreme Court held that the correct burden of proof for a
trial court to apply in a probation revocation proceeding is the preponderance of the
evidence standard. Heaton v. State, 48S02-1206-CR-350, 2013 WL 812402 (Ind. Mar. 5,
2013).
Here, the only evidence submitted by the State regarding whether Luckey had
committed a new crime was certified copies of the CCS for Cause Nos. 143 and 057
showing the filing of the charges and the trial court’s probable cause determination. On
the basis of this evidence, the trial court found that Luckey had violated the terms of his
probation by the commission of new offenses. Although the evidence was sufficient for
the trial court to find probable cause that Luckey had committed the new offenses, it was
insufficient to establish the commission of such crimes by a preponderance of the
evidence. Accordingly, we reverse the trial court’s order revoking Luckey’s probation.
Reversed.
MATHIAS, J., and CRONE, J., concur.