MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any court except for the purpose of establishing Oct 23 2020, 8:52 am
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. Madison, Indiana Attorney General of Indiana Tiffany A. McCoy Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Justin Walker, October 23, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-803 v. Appeal from the Jackson Circuit Court State of Indiana, The Honorable Richard W. Appellee-Plaintiff. Poynter, Judge Trial Court Cause No. 36C01-1704-F5-38
Tavitas, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-803 | October 23, 2020 Page 1 of 7 Case Summary [1] Justin Walker appeals the sentence imposed following the revocation of his
probation. We affirm.
Issue [2] The sole issue is whether the trial court abused its discretion in imposing
Walker’s previously-suspended one-year sentence.
Facts [3] On April 10, 2017, the State charged Walker with Count I, domestic battery, a
Level 5 felony, and Count II, intimidation, a Level 6 felony. 1 Under the terms
of a negotiated agreement wherein Count II was dismissed, Walker pleaded
guilty to Count I on December 20, 2017.
[4] On January 19, 2018, the trial court accepted the plea agreement and entered its
sentencing order. 2 Walker agreed to the following sentence as part of the plea
1 The charges stemmed from an incident in which Walker and the mother of at least one of his children engaged in a dispute. According to the police report, the dispute escalated, and Walker struck the mother in the face in front of several witnesses. 2 The terms of the resulting sentence were apparently stated incorrectly in the trial court’s January 19, 2018 written order. The order reads, “The Defendant shall be imprisoned for three (3) years in the appropriate penal facility with (1) year being suspended. The balance of the executed sentence shall be served by the Defendant being placed on home detention as a direct placement to be supervised by the Jackson/Jennings Community Corrections Department . . . .” Appellant’s App. Vol. II p. 76. Though that sentence does not appear to include any period of probation, the trial court at the probation revocation hearing in the instant case asserted: “So, what I’m going to do is I’m going to order the one (l) year—I will note for the record there is a mistake in the Court’s Sentencing Order. It’s hard for me to admit that, but—when the Court sentenced the Defendant, in the original Sentencing Order, I put three (3) years and one (l) year suspended. I forgot to [include] the one (l) year probation but it’s clearly in the Order that he was going to be on probation, that was a typographical error by the Court.” Tr. Vol. II p. 13.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-803 | October 23, 2020 Page 2 of 7 agreement: three years of incarceration with one year suspended; 377.33 days of
credit for time served and good behavior, with the remainder to be served on
home detention; and one year of formal probation. Walker successfully
completed home detention on October 9, 2018, and began probation.
[5] On June 13, 2019, however, the State filed a petition to revoke probation which
it later amended, alleging:
1) The defendant tested positive for amphetamine and methamphetamine on a drug screen administered by probation on May 13, 2019 and May 31, 2019, a direct violation of Condition #7 of his Order of Probation.
2) The defendant tested positive for amphetamine and methamphetamine on a drug screen administered by probation on September 9, 2019, September 10, 2019, and September 16, 2019, a direct violation of Condition #7 in his Order of Probation.
Appellant’s App. Vol. II p. 100.
[6] Walker failed to appear for the probation revocation hearing, and on September
26, 2019, the trial court issued a warrant for his arrest. On January 23, 2019,
the State again amended its petition to revoke probation, alleging:
1) The defendant committed another criminal offense that being: Possession of Methamphetamine on or about 12/26/2019. Charges have been filed in Jackson Circuit Court under cause #36C01-1912-F6-508, a direct violation of Condition #2 in his Order of Probation.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-803 | October 23, 2020 Page 3 of 7 Id. at 113.
[7] After reaching a plea agreement with the State for the December 2019
possession charge, Walker testified at the probation revocation hearing on
March 2, 2020. Walker admitted each of the State’s allegations, and the trial
court found that Walker violated the terms of his probation. The trial court
then heard evidence regarding sanctions. Walker requested a home detention
placement, and explained that his relapse into drug use was brought on by news
that his two daughters—who were taken to live in Texas by their mother—were
being sexually assaulted. 3 Walker’s probation officer testified that, shortly after
Walker’s relapse, Walker was admitted to a rehabilitation program. Tr. Vol. II
p. 11. Walker, however, left the program and, shortly thereafter, “went on the
run, and [the Probation Department] did not see him again until he was picked
up in December.” Id. at 12. Both the probation officer and the State
recommended that Walker be placed on home detention.
[8] The trial court, however, declined those recommendations. Citing Walker’s
drug use and abscondment from the probation supervision of the trial court for
several months, the trial court ordered Walker’s previously-suspended one-year
sentence to be executed at the Department of Correction (“DOC”). Walker
now appeals.
3 Walker’s counsel failed to effectively elicit this testimony at the hearing, though it is cited repeatedly in Walker’s appellate brief as the trigger for Walker’s relapse. Walker did, however, testify that he sent a letter to the judge, and that letter does include the claim regarding his daughters. Appellant’s App. Vol. II p. 111.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-803 | October 23, 2020 Page 4 of 7 Analysis [9] Walker argues that the trial court abused its discretion when it ordered Walker’s
previously-suspended sentence to be served at the DOC. “‘Probation is a
matter of grace left to trial court discretion, not a right to which a criminal
defendant is entitled.’” Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013)
(quoting Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007)). “It is within the
discretion of the trial court to determine probation conditions and to revoke
probation if the conditions are violated.” Id. “In appeals from trial court
probation violation determinations and sanctions, we review for abuse of
discretion.” Id. “An abuse of discretion occurs where the decision is clearly
against the logic and effect of the facts and circumstances,” id., “or when the
trial court misinterprets the law.” Id. (citing State v. Cozart, 897 N.E.2d 478, 483
(Ind. 2008)). “We will consider all the evidence most favorable to supporting
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any court except for the purpose of establishing Oct 23 2020, 8:52 am
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. Madison, Indiana Attorney General of Indiana Tiffany A. McCoy Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Justin Walker, October 23, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-803 v. Appeal from the Jackson Circuit Court State of Indiana, The Honorable Richard W. Appellee-Plaintiff. Poynter, Judge Trial Court Cause No. 36C01-1704-F5-38
Tavitas, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-803 | October 23, 2020 Page 1 of 7 Case Summary [1] Justin Walker appeals the sentence imposed following the revocation of his
probation. We affirm.
Issue [2] The sole issue is whether the trial court abused its discretion in imposing
Walker’s previously-suspended one-year sentence.
Facts [3] On April 10, 2017, the State charged Walker with Count I, domestic battery, a
Level 5 felony, and Count II, intimidation, a Level 6 felony. 1 Under the terms
of a negotiated agreement wherein Count II was dismissed, Walker pleaded
guilty to Count I on December 20, 2017.
[4] On January 19, 2018, the trial court accepted the plea agreement and entered its
sentencing order. 2 Walker agreed to the following sentence as part of the plea
1 The charges stemmed from an incident in which Walker and the mother of at least one of his children engaged in a dispute. According to the police report, the dispute escalated, and Walker struck the mother in the face in front of several witnesses. 2 The terms of the resulting sentence were apparently stated incorrectly in the trial court’s January 19, 2018 written order. The order reads, “The Defendant shall be imprisoned for three (3) years in the appropriate penal facility with (1) year being suspended. The balance of the executed sentence shall be served by the Defendant being placed on home detention as a direct placement to be supervised by the Jackson/Jennings Community Corrections Department . . . .” Appellant’s App. Vol. II p. 76. Though that sentence does not appear to include any period of probation, the trial court at the probation revocation hearing in the instant case asserted: “So, what I’m going to do is I’m going to order the one (l) year—I will note for the record there is a mistake in the Court’s Sentencing Order. It’s hard for me to admit that, but—when the Court sentenced the Defendant, in the original Sentencing Order, I put three (3) years and one (l) year suspended. I forgot to [include] the one (l) year probation but it’s clearly in the Order that he was going to be on probation, that was a typographical error by the Court.” Tr. Vol. II p. 13.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-803 | October 23, 2020 Page 2 of 7 agreement: three years of incarceration with one year suspended; 377.33 days of
credit for time served and good behavior, with the remainder to be served on
home detention; and one year of formal probation. Walker successfully
completed home detention on October 9, 2018, and began probation.
[5] On June 13, 2019, however, the State filed a petition to revoke probation which
it later amended, alleging:
1) The defendant tested positive for amphetamine and methamphetamine on a drug screen administered by probation on May 13, 2019 and May 31, 2019, a direct violation of Condition #7 of his Order of Probation.
2) The defendant tested positive for amphetamine and methamphetamine on a drug screen administered by probation on September 9, 2019, September 10, 2019, and September 16, 2019, a direct violation of Condition #7 in his Order of Probation.
Appellant’s App. Vol. II p. 100.
[6] Walker failed to appear for the probation revocation hearing, and on September
26, 2019, the trial court issued a warrant for his arrest. On January 23, 2019,
the State again amended its petition to revoke probation, alleging:
1) The defendant committed another criminal offense that being: Possession of Methamphetamine on or about 12/26/2019. Charges have been filed in Jackson Circuit Court under cause #36C01-1912-F6-508, a direct violation of Condition #2 in his Order of Probation.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-803 | October 23, 2020 Page 3 of 7 Id. at 113.
[7] After reaching a plea agreement with the State for the December 2019
possession charge, Walker testified at the probation revocation hearing on
March 2, 2020. Walker admitted each of the State’s allegations, and the trial
court found that Walker violated the terms of his probation. The trial court
then heard evidence regarding sanctions. Walker requested a home detention
placement, and explained that his relapse into drug use was brought on by news
that his two daughters—who were taken to live in Texas by their mother—were
being sexually assaulted. 3 Walker’s probation officer testified that, shortly after
Walker’s relapse, Walker was admitted to a rehabilitation program. Tr. Vol. II
p. 11. Walker, however, left the program and, shortly thereafter, “went on the
run, and [the Probation Department] did not see him again until he was picked
up in December.” Id. at 12. Both the probation officer and the State
recommended that Walker be placed on home detention.
[8] The trial court, however, declined those recommendations. Citing Walker’s
drug use and abscondment from the probation supervision of the trial court for
several months, the trial court ordered Walker’s previously-suspended one-year
sentence to be executed at the Department of Correction (“DOC”). Walker
now appeals.
3 Walker’s counsel failed to effectively elicit this testimony at the hearing, though it is cited repeatedly in Walker’s appellate brief as the trigger for Walker’s relapse. Walker did, however, testify that he sent a letter to the judge, and that letter does include the claim regarding his daughters. Appellant’s App. Vol. II p. 111.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-803 | October 23, 2020 Page 4 of 7 Analysis [9] Walker argues that the trial court abused its discretion when it ordered Walker’s
previously-suspended sentence to be served at the DOC. “‘Probation is a
matter of grace left to trial court discretion, not a right to which a criminal
defendant is entitled.’” Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013)
(quoting Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007)). “It is within the
discretion of the trial court to determine probation conditions and to revoke
probation if the conditions are violated.” Id. “In appeals from trial court
probation violation determinations and sanctions, we review for abuse of
discretion.” Id. “An abuse of discretion occurs where the decision is clearly
against the logic and effect of the facts and circumstances,” id., “or when the
trial court misinterprets the law.” Id. (citing State v. Cozart, 897 N.E.2d 478, 483
(Ind. 2008)). “We will consider all the evidence most favorable to supporting
the judgment of the trial court without reweighing that evidence or judging the
credibility of the witnesses.” Holmes v. State, 923 N.E.2d 479, 483 (Ind. Ct.
App. 2010) (quoting Monroe v. State, 899 N.E.2d 688, 691 (Ind. Ct. App. 2009)).
[10] “Probation revocation is a two-step process. First, the trial court must make a
factual determination that a violation of a condition of probation actually
occurred.” Heaton, 984 N.E.2d at 616 (citing Woods v. State, 892 N.E.2d 637,
640 (Ind. 2008)). “Second, if a violation is found, then the trial court must
determine the appropriate sanctions for the violation.” Id. If the trial 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 of Appeals of Indiana | Memorandum Decision 20A-CR-803 | October 23, 2020 Page 5 of 7 court may: . . . order execution of all or part of the sentence that was suspended
at the time of initial sentencing.” Ind. Code § 35-38-2-3(h)(3).
[11] Walker does not contest that he violated the terms of his probation. Indeed, he
openly admits it. Rather, he challenges the second step of the revocation
process, correctly pointing out that the trial court’s sentencing discretion is not
limitless and arguing that an abuse of discretion occurred here. Walker points
to Johnson v. State, 62 N.E.3d 1224, 1231 (Ind. Ct. App. 2016), as an example of
cases in which we have reversed probation revocation sentences as being
“unduly harsh sentences for minor probation violations.” Appellant’s Br. p. 11.
Johnson is easily distinguishable.
[12] The violations underpinning the probation revocation in Johnson were minor
and included leaving house arrest for an authorized trip at a time slightly
different from that which was authorized, failing to timely pay fees, and sitting
on a bench outside his apartment complex during house arrest. Johnson, 62
N.E.3d at 1227-28. There was also substantial evidence that Johnson was
mentally impaired and did not fully comprehend the import of his decisions.
Id. Walker’s violations, on the other hand, appear to be admittedly voluntary,
fully understood, and acknowledged as wrong. We are unmoved by the notion
that his repeated use of methamphetamine is somehow minor simply because
the trigger for his relapse, if true, is sympathetic. Moreover, Walker failed to
appear for his probation revocation hearing and was beyond the grasp of both
the trial court and the probation department for a period of several months until
Court of Appeals of Indiana | Memorandum Decision 20A-CR-803 | October 23, 2020 Page 6 of 7 he was apprehended while in possession of methamphetamine. We do not
consider the probation violations to be minor.
[13] In reaching its conclusion, the trial court relied on the fact that Walker
absconded from court supervision for a period of approximately three months,
as well as the fact that Walker tested positive for amphetamines and
methamphetamines on six different occasions. Additionally, Walker pleaded
guilty to a new crime, which was committed during probation. Walker argues
that he admitted his violations, had been successful in his probation until his
relapse, was gainfully employed, and had a newborn son. Appellant’s Br. p. 9.
We find Walker’s arguments unpersuasive, as they are essentially a request to
reweigh the evidence. Notwithstanding the impact of his violations on his
familial and professional responsibilities, Walker’s probation violations are
severe enough to warrant the imposition of his previously-suspended sentence.
Accordingly, we find that the trial court’s decision is not against the logic and
effect of the facts and circumstances. We, therefore, cannot say that the trial
court abused its discretion when it imposed Walker’s previously-suspended one-
year sentence as a result of Walker’s probation violations.
Conclusion [14] The trial court did not abuse its discretion by ordering Walker to serve his
previously-suspended sentence due to his probation violations. We affirm.
[15] Affirmed.
Kirsch, J., and Pyle, J., concur. Court of Appeals of Indiana | Memorandum Decision 20A-CR-803 | October 23, 2020 Page 7 of 7