Kelvin Lamonte Lampkins v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 14, 2018
• Docket: 18A02-1711-CR-2750
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be May 14 2018, 10:44 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Ronald K. Smith Curtis T. Hill, Jr. Muncie, Indiana Attorney General of Indiana Caryn N. Szyper Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Kelvin Lamonte Lampkins, May 14, 2018 Appellant-Defendant, Court of Appeals Case No. 18A02-1711-CR-2750 v. Appeal from the Delaware Circuit Court State of Indiana, The Honorable Marianne L. Appellee-Plaintiff. Vorhees, Judge Trial Court Cause No. 18C01-1410-F2-1

Pyle, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A02-1711-CR-2750 | May 14, 2018 Page 1 of 11 Statement of the Case [1] Kelvin L. Lampkins (“Lampkins”) appeals the revocation of his probation,

arguing that there was not sufficient evidence to support the revocation and that

the trial court abused its discretion by ordering him to serve six years of his

previously suspended eight-year sentence. Finding no error, we affirm the trial

court’s judgment.

[2] We affirm.

Issues 1. Whether the trial court abused its discretion by revoking Lampkins’ probation.

2. Whether the trial court abused its discretion by ordering Lampkins to serve part of his previously suspended sentence.

Facts [3] In October 2014, the State charged Lampkins, under this cause 18C01-1410-F2-

0001, with Level 2 felony dealing in a narcotic drug; two counts of Level 4

felony dealing in a narcotic drug; Level 6 felony possession of a controlled

substance; Class A misdemeanor possession of marijuana; and Level 6 felony

unlawful possession of a legend drug.1 The State also alleged that he was an

habitual offender.

1 Lampkins’ Level 6 felony possession of a controlled substance and Class A misdemeanor possession of marijuana charges were enhanced based on him having a prior drug-related conviction.

Court of Appeals of Indiana | Memorandum Decision 18A02-1711-CR-2750 | May 14, 2018 Page 2 of 11 [4] While Lampkins was on bond in this case, he was charged, under cause number

18C01-1412-F6-0061, with committing additional offenses in Delaware County.

Specifically, he was charged with Level 6 felony resisting law enforcement and

two counts of Class A misdemeanor possession of a controlled substance.

[5] In January 2017, Lampkins entered into a plea agreement and pled guilty to

one of the Level 4 felony dealing in a narcotic drug charges in exchange for the

dismissal of the remaining counts and habitual offender allegation in this cause

and the dismissal of charges from cause 18C01-1412-F6-0061.2

[6] In February 2017, the trial court held a sentencing hearing, during which

Lampkins presented character witnesses. Lampkins, who was sixty years old at

the time of sentencing, had multiple convictions in Indiana and other states.

The trial court specifically noted that Lampkins had three prior drug-related

convictions, had been incarcerated for each of them, and had failed to take

advantage of rehabilitative opportunities. The trial court acknowledged that

Lampkins had pled guilty and noted that his character witnesses, who had

“vouched for [Lampkins’] character[,]” showed that he had “community

support” that was important for his rehabilitation. (Tr. Vol. 2 at 20, 21). The

trial court imposed an eight (8) year sentence, with all eight (8) years suspended

to supervised probation.

2 The plea agreement also provided that an infraction in cause 18C01-1611-IF-34 would be dismissed.

Court of Appeals of Indiana | Memorandum Decision 18A02-1711-CR-2750 | May 14, 2018 Page 3 of 11 [7] A couple of months later, on May 1, 2017, the State filed a notice of probation

violation, alleging that Lampkins had violated his probation by committing

another criminal offense in Marion County. Specifically, the State alleged that

Lampkins had been “charged in 49G20-1704-F5-015630 with: Count 1:

Possession of a Narcotic, Level 5 felony and Count 2: Possession of Marijuana,

Class A Misdemeanor.” (App. Vol. 2 at 112).

[8] The trial court held a probation revocation hearing on October 2, 2017. During

the hearing, the State presented testimony from Lampkins’ probation officer,

Vickie Reed (“Probation Officer Reed”), who testified that Lampkins had been

charged in Marion County, under cause number 49G20-1704-F5-015630. The

State also offered certified copies of the charging information (State’s Exhibit 1)

and the sentencing order (State’s Exhibit 2) from that Marion County cause.

[9] State’s Exhibit 1 revealed that “Kelvin Lampkins” was charged with Level 5

felony possession of a narcotic drug and Class A misdemeanor possession of

marijuana on April 25, 2017, and both charges specifically referred to

Lampkins’ current Delaware County conviction for “Dealing a Narcotic Drug

under cause number 18C01-1410-F2-000001” as the basis for enhancing the two

Marion County charges. (State’s Ex. 1). State’s Exhibit 1 also contained

Lampkins’ date of birth, race, and gender. The exhibit, however, did not

contain a complete cause number and listed the cause number as “49G21[.]”

(State’s Ex. 1). State’s Exhibit 2 contained the full Marion County cause

number and revealed the following: “Kelvin Lampkins” pled guilty to a lesser-

included offense of Level 6 felony possession of a narcotic drug; the Class A

Court of Appeals of Indiana | Memorandum Decision 18A02-1711-CR-2750 | May 14, 2018 Page 4 of 11 misdemeanor possession of marijuana charge was dismissed; Lampkins was

sentenced to two years, with one year executed and one year suspended; and

his sentence was to run consecutively to “18C01-1410-F2-000001[,]” this

current Delaware County cause. (State’s Ex. 2). When the State moved to

admit the two exhibits, Lampkins objected, arguing that the charging

information did not contain a complete cause number and that the sentencing

order did not contain Lampkins’ date of birth or some other identifying

information. The trial court overruled the objection, noting that Lampkins’

argument went “to the weight, not the admissibility.” (Tr. Vol. 2 at 29).

[10] After the State rested, Lampkins moved for dismissal of the revocation petition,

arguing that the State’s exhibits were “insufficient.” (Tr. Vol. 2 at 30). The trial

court disagreed and noted that both of the State’s exhibits referenced the cause

number from Lampkins’ current Delaware County case. The trial court also

noted that State’s Exhibit 1, the charging information, contained Lampkins’

race, gender, and date of birth, and Probation Officer Reed confirmed that

Lampkins’ date of birth was the same as the date listed on State’s Exhibit 1.

The trial court also looked at cause number 49G20-1704-F5-015630 in Odyssey

and took judicial notice that the charging information from that cause

contained the same cause number as the sentencing order in State’s Exhibit 2.

The trial court concluded that the “Kelvin Lampkins” who was charged and

convicted in the Marion County cause was “the same Kelvin Lampkins” who

was appearing before the trial court for the revocation hearing. (Tr. Vol. 2 at

31). Accordingly, the trial court determined that Lampkins had violated his

Court of Appeals of Indiana | Memorandum Decision 18A02-1711-CR-2750 | May 14, 2018 Page 5 of 11 probation by committing a new offense. The trial court revoked Lampkins’

probation and ordered him to serve six years of his previously suspended eight-

year sentence.3 Lampkins now appeals.

Decision [11] Lampkins argues that the trial court abused its discretion by: (1) revoking his

probation; and (2) ordering him to serve six years of his previously suspended

eight-year sentence. We will address each argument in turn.

1. Revocation of Probation

[12] Lampkins challenges the trial court’s determination that he violated probation

by committing a new offense while on probation.

[13] “Probation is a matter of grace left to trial court discretion, not a right to which

a criminal defendant is entitled.” Prewitt v. State, 878 N.E.2d 184, 188 (Ind.

2007). The trial court determines the conditions of probation and may revoke

probation if the conditions are violated. Id.; see also IND. CODE § 35-38-2-3(a).

Indeed, violation of a single condition of probation is sufficient to revoke

probation. Gosha v. State, 873 N.E.2d 660, 663 (Ind. Ct. App. 2007). The State

must prove the alleged violation by a preponderance of the evidence. I.C. § 35-

38-2-3(f).

3 During the dispositional hearing, the trial court took judicial notice of the original sentencing hearing. The transcript of that sentencing hearing is contained in the record on appeal.

Court of Appeals of Indiana | Memorandum Decision 18A02-1711-CR-2750 | May 14, 2018 Page 6 of 11 [14] We review a trial court’s probation violation determination for an abuse of

discretion. Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013). An abuse of

discretion occurs where the decision is clearly against the logic and effect of the

facts and circumstances or when the trial court misinterprets the law. Id. When

reviewing a trial court’s determination that a probation violation has occurred,

we consider only the evidence most favorable to the judgment, and we will not

reweigh the evidence or judge the credibility of the witnesses. Sanders v. State,

825 N.E.2d 952, 955 (Ind. Ct. App. 2005), trans. denied.

[15] “When a probationer is accused of committing a criminal offense, an arrest

alone does not warrant the revocation of probation.” Johnson v. State, 692

N.E.2d 485, 487 (Ind. Ct. App. 1998). Likewise, the mere filing of a criminal

charge against a defendant does not warrant the revocation of probation.

Martin v. State, 813 N.E.2d 388, 391 (Ind. Ct. App. 2004). Instead, when the

State alleges that the defendant violated probation by committing a new

criminal offense, the State is required to prove—by a preponderance of the

evidence—that the defendant committed the offense. Heaton, 984 N.E.2d at

617.

[16] Here, the State alleged that Lampkins had violated his probation by committing

another criminal offense in Marion County. The probation revocation notice

alleged that Lampkins had been “charged in 49G20-1704-F5-015630 with:

Count 1: Possession of a Narcotic, Level 5 felony and Count 2: Possession of

Marijuana, Class A Misdemeanor.” (App. Vol. 2 at 112). During the

revocation hearing, Probation Officer Reed testified that Lampkins had been

Court of Appeals of Indiana | Memorandum Decision 18A02-1711-CR-2750 | May 14, 2018 Page 7 of 11 charged in Marion County under cause number 49G20-1704-F5-015630. The

State also admitted certified copies of the charging information and sentencing

order from that Marion County cause—State’s Exhibit 1 and Exhibit 2,

respectively—to show that Lampkins had been charged and convicted of

another crime. State’s Exhibit 1 revealed that Lampkins had been charged with

Level 5 felony possession of a narcotic drug and Class A misdemeanor

possession of marijuana on April 25, 2017. Both charges in the charging

information specifically referred to Lampkins’ current Delaware County

conviction for dealing in a narcotic drug and the current Delaware County

cause number of “18C01-1410-F2-000001[.]” (State’s Ex. 1). State’s Exhibit 1

also contained Lampkins’ date of birth, race, and gender, and Probation Officer

Reed confirmed that Lampkins’ date of birth was the same as the date listed on

State’s Exhibit 1. While State’s Exhibit 1 did not contain a complete cause

number, the trial court—without objection from Lampkins—took judicial

notice of the record in cause number 49G20-1704-F5-015630 and noted that the

charging information contained a complete cause number and that it was the

same as the cause number on the sentencing order in State’s Exhibit 2.

Additionally, State’s Exhibit 2 revealed that, pursuant to Lampkins’ guilty plea

to the lesser-included offense of Level 6 felony possession of a narcotic drug, he

had been convicted in Marion County and that his Marion County sentence in

49G20-1704-F5-015630 was to run consecutively to his current Delaware

County conviction in cause number “18C01-1410-F2-000001[.]” (State’s Ex.

2).

Court of Appeals of Indiana | Memorandum Decision 18A02-1711-CR-2750 | May 14, 2018 Page 8 of 11 [17] Lampkins argues that there was not sufficient evidence to support the trial

court’s revocation of his probation. He does not challenge the admissibility of

State’s Exhibit 1 or Exhibit 2. Instead, he argues that the State’s exhibits were

“insufficient to show a violation.” (Lampkins’ Br. 8). The crux of his argument

is that State’s Exhibit 1 was insufficient to support his revocation because it did

not contain a full cause number and did not match the complete cause number

mentioned in the petition to revoke his probation. He acknowledges, however,

that, under Evidence Rule 201, the trial court took judicial notice of the Marion

County cause and that it took judicial notice of the charging information that

contained the full Marion County cause number.

[18] Lampkins’ argument is nothing more than a reiteration of his sufficiency

argument to the trial court, which was rejected, and a request to reweigh the

evidence, which we will not do. See Sanders, 825 N.E.2d at 955. Because the

evidence was sufficient to show by a preponderance of the evidence that

Lampkins violated the terms of his probation by committing a new offense in

Marion County, we affirm the trial court’s revocation of his probation.

2. Order to Serve Part of Suspended Sentence

[19] Lampkins also argues that the trial court abused its discretion by ordering him

to serve six years of his previously suspended eight-year sentence. He contends

that the trial court’s decision was “unreasonable” and that the trial court should

have placed him on home detention. (Lampkins’ Br. 10).

Court of Appeals of Indiana | Memorandum Decision 18A02-1711-CR-2750 | May 14, 2018 Page 9 of 11 [20] Upon determining that a probationer has violated a condition of probation, the

trial court may “[o]rder 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).

“Once a trial court has exercised its grace by ordering probation rather than

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

proceed.” Prewitt, 878 N.E.2d at 188. “If this discretion were not given to trial

courts and sentences were scrutinized too severely on appeal, trial judges might

be less inclined to order probation to future defendants.” Id. As a result, we

review a trial court’s sentencing decision from a probation revocation for an

abuse of discretion. Id. (citing Sanders, 825 N.E.2d at 956). An abuse of

discretion occurs where the decision is clearly against the logic and effect of the

facts and circumstances. Id.

[21] The record reveals that the trial court had ample basis for its decision to order

Lampkins to serve six years of his previously eight-year suspended sentence in

the Indiana Department of Correction. Most significantly, the trial court—

when originally sentencing Lampkins—showed tremendous leniency to him

and imposed a fully-suspended eight-year sentence. Lampkins squandered this

opportunity and committed another drug-related crime within a few months of

being put on probation. Furthermore, Lampkins’ criminal history includes

felony drug-related convictions, such as dealing in cocaine and possession of a

controlled substance in Indiana in 2005; unlawful possession of cannabis in

Illinois in 1995; possession of a controlled substance in California in 1990; and

possession of a narcotic controlled substance in California in 1989. Based on

Court of Appeals of Indiana | Memorandum Decision 18A02-1711-CR-2750 | May 14, 2018 Page 10 of 11 the record before us, we conclude that the trial court did not abuse its discretion

by ordering Lampkins to serve six years of his previously suspended eight-year

sentence. For the foregoing reasons, we affirm the trial court’s revocation of

Lampkins’ probation.4

[22] Affirmed.

Vaidik, C.J., and Barnes, J., concur.

4 Lampkins asserts that he “would analogize the trial court’s decision herein to that of the trial court in the case of Ripps v. State, 968 N.E.2d 323 (Ind. Ct. App. 2012).” (Lampkins’ Br. 10). Lampkins, however, provides no analogy, analysis, nor cogent argument of how Ripps is applicable to support his argument that the trial court abused its discretion. Accordingly, he has waived any such argument. See Ind. Appellate Rule 46(A)(8)(a) (requiring argument be supported by cogent reasoning with citations to authority); Majors v. State, 773 N.E.2d 231, 235 n.2 (Ind. 2002) (concluding that the defendant had waived arguments not supported by cogent argument).

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