Joseph Harold Driver, Jr. v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 27, 2018
• Docket: 36A04-1712-CR-2995
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jun 27 2018, 10:19 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE R. Patrick Magrath Curtis T. Hill, Jr. Alcorn Sage Schwartz & Magrath, LLP Attorney General of Indiana Madison, Indiana Henry A. Flores, Jr. Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Joseph Harold Driver, Jr., June 27, 2018 Appellant-Defendant, Court of Appeals Case No. 36A04-1712-CR-2995 v. Appeal from the Jackson Circuit Court State of Indiana, The Honorable Chris D. Monroe, Appellee-Plaintiff. Senior Judge Trial Court Cause No. 36C01-1106-FB-17

Brown, Judge.

Court of Appeals of Indiana | Memorandum Decision 36A04-1712-CR-2995 | June 27, 2018 Page 1 of 11 [1] Joseph Harold Driver, Jr., appeals his sentence following the revocation of his

probation. Driver raises one issue which we revise and restate as whether the

trial court abused its discretion in ordering him to serve the remainder of his

previously suspended sentence. We affirm.

Facts and Procedural History

[2] On June 22, 2011, the State charged Driver with attempted dealing in

methamphetamine as a class B felony. On September 22, 2011, he pled guilty.

On October 18, 2011, the court accepted Driver’s guilty plea and ordered that

he “be imprisoned for 8 years in the appropriate correctional facility, 5 years

suspended, placed on supervised probation for 5 years” and that he receive “132

days credit, 132 days credit time.” Appellant’s Appendix Volume 2 at 51. At

some point, Driver’s probation was transferred from Jackson County to the

state of Tennessee.

[3] On August 2, 2017, the State filed a petition to revoke probation and request for

a warrant, which alleged that, on or about July 20, 2017, Driver had committed

two counts of domestic assault and a count of unlawful possession of a weapon

by a convicted felon “as charged in Rutherford County, Tennessee under cause

#F-77554, a direct violation of Condition #2 in his Order of Probation.” 1 Id. at

61.

1 The Appellant’s Appendix contains the court’s order of probation, which is addressed to “Joe H. Driver Jr.” at Murfreesboro, Tennessee and which states, under the heading “Standard Conditions of Probation,” “2. You must not commit another criminal offense. If you do commit another criminal offense, your probation

Court of Appeals of Indiana | Memorandum Decision 36A04-1712-CR-2995 | June 27, 2018 Page 2 of 11 [4] On December 6, 2017, the court held a hearing. When it asked how Driver

wished to proceed, the following exchange occurred:

[Driver’s Counsel]: Your Honor, I was told that the prior hearing where [Driver] was Pro Se, that the [c]ourt had withdrew the sanctions but left the admissions . . .

THE COURT: Well, that’s my recollection, but sometimes when I appoint counsel the [d]efendant may want to do more. As I advised him at the hearing the allegation of the violation is by a criminal charge and the [c]ourt’s understanding is that he pled guilty to that charge and so . . . as I understood [Driver’s] objection from the [c]ourt’s previous, a couple hearings ago, was the disposition but not the finding of a violation.

[Driver’s Counsel]: He still is admitting to the allegation and . . [.]

THE COURT: Okay.

[Driver’s Counsel]: [. . .] arguing the sanctions.

Transcript Volume 1 at 3.

[5] Probation Officer Jacob Finley testified Tennessee submitted an annual

progress report regarding Driver’s probation “usually about February” for the

first four years of his supervision which said that Driver was in compliance but

may be revoked.” Appellant’s Appendix Volume 2 at 57. Under the heading of “Special Conditions,” the order states, “26. You shall submit to a responsible drug and alcohol abuse program for evaluation by 3-1- 2013. If the evaluation reveals a need for therapy, you must complete that program as established and pay all costs associated therein.” Id. at 59. The initials “JD” appear in the space provided next to all the conditions imposed by the court.

Court of Appeals of Indiana | Memorandum Decision 36A04-1712-CR-2995 | June 27, 2018 Page 3 of 11 that in “January of 2017 we started to receive information that [Driver had]

picked up some new arrests in November and December of 2016.” Id. at 13-14.

[6] Driver testified that he had a leg and foot injury and back issues and then

stated: “My health, other than – My health’s all right pretty much.” Id. at 5.

He testified that he received one year probation for the “gun charge” in the

“felony case” in Tennessee and stated, when asked if that was the only case he

had in Tennessee, that “[t]he other two (2) was [sic] misdemeanors. I got drunk

on some moonshine and, you know, I got into it with my wife and daughter

and, you know, at the time and they gave me just a domestic on it.” Id. at 6.

When asked again if any other charges were filed in Tennessee, he answered,

“[n]o. Just a Reckless Driving,” and added, “[t]hey just put me on like a three

(3) month probation thing, you know, on misdemeanor probation. ‘Cause I’m

on misdemeanor and felony probation down there.” Id. at 7. He agreed that he

had a substance abuse problem and stated, “I mean, I drank a lot, yeah, every

now and then. That’s my big problem, I drink, you know, and that’s what gets

me in trouble.” Id.

[7] According to his testimony during cross-examination, Driver pled guilty to the

“Reckless Driving case” and to the “other case . . . [involving] Domestic

Assault, Domestic Assault, Two Counts, and Unlawful Possession of a

Weapon.” Id. at 8. He responded he received at least two DUI charges in

Tennessee and a charge of having “a weapon inside of [a jail] facility” when he

“went into the jail . . . and . . . was drunk and . . . took it off and showed it to

them” that, “they threw . . . out of [c]ourt.” Id. at 10. He indicated that he

Court of Appeals of Indiana | Memorandum Decision 36A04-1712-CR-2995 | June 27, 2018 Page 4 of 11 “caught a DUI and Reckless Driving” in Kentucky for “flying down the

interstate too fast,” answered affirmatively when asked if he had “a Marijuana

in Tennessee” in 2009, and stated “I mean, I’ve had a little trouble with drugs

too.” Id. at 11. When asked if he also had probation violations, he answered:

“Yeah. I mean, down there every time you get, I mean, you ain’t got to be

convicted down there, especially on misdemeanor. They’ll violate you right off

the top right there. You going to get a violation.” Id.

[8] Driver indicated that he was still married to his wife, C.D., at which point the

court asked if she was the one he battered in Tennessee and he responded, “I’ve

got the charge for that, but I mean, I didn’t touch her.” Id. at 16. The following

exchange occurred:

THE COURT: So you didn’t really do it but you pled guilty anyway?

[Driver]: Yeah, I pled guilty to it, yes.

THE COURT: So you lied to somebody. I don’t know how they do it in Tennessee but do they swear you in and have you agree that you committed the offense?

[Driver]: Huh?

THE COURT: I don’t know how they do it in Tennessee, but in Indiana we require that someone be placed under oath, swear them in, and then they testify and they admit that they committed the crime. Is that what they do in Tennessee?

[Driver]: Well, down there I just signed a plea but they didn’t have no –

THE COURT: Okay. So you signed a document.

Court of Appeals of Indiana | Memorandum Decision 36A04-1712-CR-2995 | June 27, 2018 Page 5 of 11 [Driver]: Yeah.

THE COURT: Is that what you’re saying?

[Driver]: I mean, yeah. I mean, she was supposed to. And me, I signed it too right there, I mean, but I just, I just took the charge, you know.

THE COURT: All right. Well, you, you’re doing something similar to what you’ve done before. You kind of go on and that’s, you know, not a big problem but – It sounds to me like you signed a Plea Agreement that said you agree you committed the crime and now you’re kind of hedging on that. I think you made some kind of comment like, “Well, you know, yeah, I hit her before but, you know, it’s only every so often or something.”

[Driver]: Well no, ‘cause I ain’t never hit my wife.

THE COURT: Never hit her?

[Driver]: I never hauled off and hit her, not one time.

THE COURT: Did you ever push her?

[Driver]: Well yeah. I’ve grabbed her arms to contain her when she’d come at me, but that’s about all I’ve done.

THE COURT: Okay. You know that’s a Battery.

[Driver]: Yeah, I know.

THE COURT: That’s illegal.

[Driver]: I know.

Id. at 16-17. Driver indicated that he violated two protection orders with his

wife when asked by the court about his presentence report. When the court

inquired into his alcohol usage, the following exchange occurred:

Court of Appeals of Indiana | Memorandum Decision 36A04-1712-CR-2995 | June 27, 2018 Page 6 of 11 THE COURT: So why do you keep drinking?

[Driver]: I wish I could just throw it down there.

*****

THE COURT: Why don’t you stop?

[Driver]: I don’t know why I quit drinking, I mean, keep drinking.

THE COURT: So that’s a problem because if you don’t know why, you will not stop. Obviously you haven’t stopped. And so if you still drink, first of all that’s a violation of the condition of probation here. Okay?

[Driver]: Okay.

THE COURT: . . . So it sounds to me like it’s likely, the first choice you have to make is are you going to drink or not. And you choose to drink. Then under the influence you make other poor choices. . . . So, you don’t get it yet. All right. You haven’t apparently even given your drinking any significant consideration. And based upon your own testimony here today it’s your drinking that gets you in trouble. Is that right?

[Driver]: Yes, sir. I’ve been, I’m, I’ve been thinking, I mean, the whole time I’ve been in jail, you know, about, you know, about my drinking. I’m going to quit. It pays not to be drinking (indiscernible).

Id. at 18-19. When asked if he was saying that he was going to stop drinking

now, Driver stated he was going to try his best and, when the court asked for

specifics, he described his daughter’s pregnancy and wife’s attempted suicide.

[9] On December 12, 2017, the court entered an order revoking Driver’s probation,

finding that Driver acknowledged under oath he had violated the terms of his

Court of Appeals of Indiana | Memorandum Decision 36A04-1712-CR-2995 | June 27, 2018 Page 7 of 11 supervised probation as alleged in the State’s petition to revoke probation and

ordered the “suspended sentence of five (5) years into execution to be served in

the appropriate penal facility.” Appellant’s Appendix Volume 2 at 70.

Discussion

[10] The issue is whether the court abused its discretion in ordering Driver to serve

the remainder of his previously suspended sentence. Driver does not challenge

the finding that he violated his probation. Rather, he argues, in effect, that his

ready admission to the present violation and the completion of “almost all of

his suspended sentence without any violation,” dictate that the trial court

abused its discretion by revoking his entire suspended sentence. Appellant’s

Brief at 12. Specifically, he contends that “[w]ith a short period o[f] probation

left to complete, [he] made a mistake,” “received new charges,” and “admitted

to his mistake as soon as was able to.” Id. He contends that the court’s order to

serve the balance of his suspended sentence came “the day after he was

scheduled to be terminated from probation.” Id. at 9. He also points to several

medical, financial, and family circumstances to explain and mitigate the

violation, and argues that “[he] and his dependents are suffering undue

hardship as a result of the . . . revocation of his suspended sentence. The

physical and mental wellbeing of, [sic] not only Driver, is substantial[ly]

impacted by the trial court’s error.” Id. at 11-12.

[11] The State argues that Driver admitted to consuming alcohol and being

convicted of reckless driving while on probation, both violations of his

probation, that the court had discretion to order him to serve his previously Court of Appeals of Indiana | Memorandum Decision 36A04-1712-CR-2995 | June 27, 2018 Page 8 of 11 suspended sentence, and that he has essentially invited this Court to reweigh his

admitted violations. The State further contends that his family circumstances

do not mandate a finding of undue hardship, his physical condition is not

deserving of mitigation, and his claim of mental illness is “at best speculative”

given that no evidence has “established any nexus between [Driver’s] conduct

and any mental health issue.” Appellee’s Brief at 9.

[12] Ind. Code § 35-38-2-3(h) sets forth a trial court’s sentencing options if the trial

court finds a probation violation and provides:

If the court finds that the person has violated a condition at any time before termination of the period, and the petition to revoke is filed within the probationary period, the court may impose one (1) or more of the following sanctions:

(1) Continue the person on probation, with or without modifying or enlarging the conditions.

(2) Extend the person’s probationary period for not more than one (1) year beyond the original probationary period.

(3) Order execution of all or part of the sentence that was suspended at the time of initial sentencing.

[13] The Indiana Supreme Court has held that trial court probation violation

determinations and sanctions are reviewed using the abuse of discretion

standard. Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013) (citing Prewitt v.

State, 878 N.E.2d 184, 188 (Ind. 2007)). The Court explained that “[o]nce a

trial court has exercised its grace by ordering probation rather than

incarceration, the judge should have considerable leeway in deciding how to

Court of Appeals of Indiana | Memorandum Decision 36A04-1712-CR-2995 | June 27, 2018 Page 9 of 11 proceed” and that “[i]f this discretion were not afforded to trial courts and

sentences were scrutinized too severely on appeal, trial judges might be less

inclined to order probation to future defendants.” Prewitt, 878 N.E.2d at 188.

An abuse of discretion occurs where the decision is clearly against the logic and

effect of the facts and circumstances. Id. (citation omitted). As long as the

proper procedures have been followed in conducting a probation revocation

hearing, “the trial court may order execution of a suspended sentence upon a

finding of a violation by a preponderance of the evidence.” Goonen v. State, 705

N.E.2d 209, 212 (Ind. Ct. App. 1999). When the alleged probation violation is

the commission of a new crime, conviction of the new crime is not required.

Pierce v. State, 44 N.E.3d 752, 755 (Ind. Ct. App. 2015) (citing Richeson v. State,

648 N.E.2d 384, 389 (Ind. Ct. App. 1995), trans. denied).

[14] The record reveals that the trial court initially ordered Driver to be imprisoned

for eight years with “5 years suspended, placed on supervised probation for 5

years.” Appellant’s Appendix Volume 2 at 51. As pointed out in his brief,

Driver does not challenge the finding that he violated his probation. At the

probation revocation hearing, he admitted to the allegation in the State’s

petition that he had two counts of domestic assault and a count of unlawful

possession of a weapon by a convicted felon. The court heard testimony from

Driver regarding several charges in Tennessee and Kentucky, as well as

admissions of probation violations, alcohol abuse, substance usage, and other

protection order violations. When the court asked about his pleading guilty to

assaulting his wife, Driver stated that he “never hit my wife,” admitted that he

Court of Appeals of Indiana | Memorandum Decision 36A04-1712-CR-2995 | June 27, 2018 Page 10 of 11 pushed her, and admitted that he “grabbed her arms to contain her when she’d

come at me, but that’s about all I’ve done,” before acknowledging that he knew

his action constituted a battery. Transcript Volume 1 at 17. He testified that he

had a leg and foot injury and back issues, but stated that his health was “all

right pretty much.” Id. at 5. To the extent Driver argues that his alleged

medical, financial, and family circumstances explain and mitigate his violation,

we will not reweigh the evidence below. Terrell v. State, 886 N.E.2d 98, 100

(Ind. Ct. App. 2008) (citing Piper v. State, 770 N.E.2d 880, 882 (Ind. Ct. App.

2002), trans. denied).

[15] Given the circumstances as set forth above, we cannot say that the court abused

its discretion in ordering Driver to serve the remainder of his previously

suspended sentence. See Milliner v. State, 890 N.E.2d 789, 793 (Ind. Ct. App.

2008) (holding that the trial court did not abuse its discretion in reinstating the

probationer’s previously suspended sentence), trans. denied.

Conclusion

[16] For the foregoing reasons, we affirm the trial court’s order that Driver serve the

remainder of his previously suspended sentence.

[17] Affirmed.

Bailey, J., and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 36A04-1712-CR-2995 | June 27, 2018 Page 11 of 11