Joshua D. Darner v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 26, 2016
• Docket: 32A01-1507-CR-887
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Feb 26 2016, 9:58 am

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 Paula M. Sauer Gregory F. Zoeller Danville, Indiana Attorney General of Indiana

Jonathan R. Sichtermann Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Joshua D. Darner, February 26, 2016 Appellant-Defendant, Court of Appeals Cause No. 32A01-1507-CR-887 v. Appeal from the Hendricks Superior Court State of Indiana, The Honorable Mark A. Smith, Appellee-Plaintiff. Judge Trial Court Cause No. 32D04-1303-FC-34

Barnes, Judge.

Court of Appeals of Indiana | Memorandum Decision 32A01-1507-CR-887 | February 26, 2016 Page 1 of 5 Case Summary [1] Joshua Darner appeals the revocation of his probation. We affirm.

Issue [2] The sole restated issue is whether there is sufficient evidence to support the

revocation of Darner’s probation.

Facts [3] On November 12, 2013, Darner pled guilty to obtaining a controlled substance

by fraud or deceit, a Class D felony. The trial court sentenced him to 1095 days

in the Department of Correction, suspended the entirety of the sentence to

probation, and ordered him to pay fifty-five dollars per month in fees and court

costs.

[4] On March 5, 2014, the probation department filed a petition alleging Darner

violated the conditions of his probation by possessing and consuming

marijuana and “a controlled substance without a prescription from a licensed

physician, to wit: Hydrocodone.” App. p. 41. It further alleged he failed “to be

evaluated by a DMHA certified substance abuse program within forty-five days

of sentencing” and “to pay $55.00 per month toward [his] fines, costs, and

fees.” Id. On May 27, 2014, the probation department filed a supplemental

petition alleging Darner violated the conditions of his probation by possessing

and consuming marijuana and “a controlled substance without a prescription

from a licensed physician, to wit: Morphine.” Id. at 50.

Court of Appeals of Indiana | Memorandum Decision 32A01-1507-CR-887 | February 26, 2016 Page 2 of 5 [5] On June 16, 2015, the trial court held an evidentiary hearing on both petitions.

On cross-examination, Darner admitted he tested positive in two separate drug

screens. He also admitted he did not make any payments toward his fees.

Andrew Lilpop, Darner’s supervising probation officer, testified that although

Darner had scheduled evaluations at Life Recovery Center on more than one

occasion, he did not attend them and did not complete a substance abuse

program.

[6] The trial court found Darner violated his probation by “possessing or

consuming an illegal drug without prescription on two (2) different occasions

and he failed to pay fees that he was ordered to pay and he failed to complete a

certified substance abuse program with[in] forty five (45) days of his sentencing

date.” Tr. pp. 98-99; App. p. 60. It revoked his probation and sentenced him to

serve 730 days in the Department of Correction. Darner now appeals.

Analysis [7] Darner contends the State failed to prove he recklessly, knowingly, or

intentionally failed to pay fines, court costs, and fees and that the evidence is,

therefore, insufficient to support the revocation of his probation.

[8] The State must prove a violation of probation by a preponderance of the

evidence. Dokes v. State, 971 N.E.2d 178, 179 (Ind. Ct. App. 2012). The

decision to revoke probation lies within the sound discretion of the trial court,

and it may revoke probation if the conditions thereof are violated. Lamply v.

State, 31 N.E.3d 1034, 1037 (Ind. Ct. App. 2015). We review challenges to the

Court of Appeals of Indiana | Memorandum Decision 32A01-1507-CR-887 | February 26, 2016 Page 3 of 5 revocation of probation for an abuse of discretion. Rudisel v. State, 31 N.E.3d

984, 987 (Ind. Ct. App. 2015). A trial court abuses its discretion when its

decision is clearly against the logic and effect of the facts and circumstances

before it. Figures v. State, 920 N.E.2d 267, 271 (Ind. Ct. App. 2010). If there is

substantial evidence of probative value to support the trial court’s conclusion

that a defendant has violated any term of probation, we will affirm its decision

to revoke probation. Id. at 272.

[9] Darner himself admitted he tested positive on two drug screens. See Tr. pp. 92-

93. That admission itself is sufficient to prove by a preponderance of the

evidence that Darner violated a term of his probation. The violation of a single

term of probation is sufficient to support the revocation of probation.

Consequently, we need not address Darner’s arguments regarding his failure to

make payments.

[10] Darner acknowledges he admitted he used illegal drugs and failed to complete a

drug treatment program. He contends that despite those admissions, the State’s

failure to meet its burden of proof with regard to his failure to pay is not

harmless error. He characterizes his failure to complete substance abuse

treatment as a technical violation and argues, “This Court cannot be sure that

the trial court would have imposed the same punishment of 730 days executed

at IDOC for the two remaining violations . . . .” Appellant’s. Br. p. 9. Darner

cites to Heaton v. State, 984 N.E.2d 614 (Ind. 2013), to support that request. In

Heaton, our supreme court vacated one of four findings that a probationer

committed a violation and remanded the matter to the trial court to reconsider

Court of Appeals of Indiana | Memorandum Decision 32A01-1507-CR-887 | February 26, 2016 Page 4 of 5 the probationer’s sanction in light of the fact that the three remaining violations

were technical in nature. Id. at 618. Darner asks this Court to similarly remand

this matter. Darner tested positive for illegal substances in two separate drug

screens. Each screen revealed he had consumed marijuana and a prescription

medication for which he did not have a prescription. Such a violation is not, in

our view, insignificant or “technical,” especially given that Darner was on

probation for a drug offense. This matter is readily distinguishable from Heaton.

Conclusion [11] The trial court did not abuse its discretion when it revoked Darner’s probation.

Affirmed.

Robb, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 32A01-1507-CR-887 | February 26, 2016 Page 5 of 5