MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Oct 26 2016, 8:44 am
regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Donald C. Swanson, Jr. Gregory F. Zoeller Deputy Public Defender Attorney General of Indiana Fort Wayne, Indiana Christina D. Pace Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Kent R. Blair, Sr., October 26, 2016 Appellant-Defendant, Court of Appeals Case No. 02A03-1604-CR-833 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Wendy W. Davis, Appellee-Plaintiff Judge Trial Court Cause No. 02D04-1407-F6-6
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 02A03-1604-CR-833 | October 26, 2016 Page 1 of 8 Case Summary [1] Kent R. Blair, Sr. appeals the revocation of his probation. He challenges the
sufficiency of the evidence to support a finding that he violated his probation
and the trial court’s decision to remand him to the Department of Correction
(“DOC”) for the remainder of his previously suspended term. Finding that the
evidence is sufficient and the trial court acted within its discretion in executing
his suspended sentence, we affirm.
Facts and Procedural History [2] The facts most favorable to the judgment are as follows: Blair married Rhonda
in 1999, and a son (“Son”) was born of the marriage. The couple owned a
residence on Scott Avenue (“the Property”). In 2012, Blair was convicted of
strangulation and domestic battery, both as class D felonies, stemming from a
domestic violence incident against Rhonda. In 2014, Rhonda sought and
obtained a protective order against Blair. Shortly thereafter, Blair violated the
protective order, pled guilty to level 6 felony invasion of privacy, and was
sentenced to probation. Meanwhile, Rhonda filed a petition for marital
dissolution. Blair was served but failed to appear for the dissolution hearing.
As part of the 2015 dissolution decree, Rhonda was awarded the Property, for
which the Allen County Commissioner issued her a quitclaim deed. State’s
Exs. 2, 4.
[3] At one point in 2015, Rhonda left the Property due to safety concerns involving
Blair. In October 2015, Rhonda came to the Property to pick up some clothing.
Court of Appeals of Indiana | Memorandum Decision 02A03-1604-CR-833 | October 26, 2016 Page 2 of 8 When she attempted to unlock the door, she discovered that the locks had been
changed. Blair and Son were inside. Blair told Rhonda to leave and claimed
that he was the owner of the Property. Rhonda refuted his claim of ownership,
ordered him to leave, and called the police. Blair and Son fled on foot before
the police arrived.
[4] A similar incident occurred in November 2015, in which Rhonda attempted to
enter the Property, discovered that the locks had again been changed, and
found that Blair and Son were inside. This time, Blair and Son did not leave,
and when Rhonda showed the responding officer her ownership papers, the
officer kicked in the door and arrested Blair for violating the protective order
and trespassing on Rhonda’s property.
[5] After the November 2015 incident, the State filed a petition to revoke Blair’s
probation, citing as violations his commission of invasion of privacy and
criminal trespass. At the close of the March 2016 revocation hearing, the trial
court found that Blair had violated his probation by committing new criminal
offenses and remanded him to the DOC to serve the two remaining years of his
previously suspended sentence.
[6] Blair now appeals. Additional facts will be provided as necessary.
Discussion and Decision [7] Blair maintains that the trial court abused its discretion in revoking his
probation. Probation is a matter of grace left to the trial court’s sound
discretion, not a right to which a criminal defendant is entitled. Prewitt v. State, Court of Appeals of Indiana | Memorandum Decision 02A03-1604-CR-833 | October 26, 2016 Page 3 of 8 878 N.E.2d 184, 188 (Ind. 2007). The trial court determines the conditions of
probation and may revoke probation if the probationer violates those
conditions. Id. We review a trial court’s probation violation determination
using an abuse of discretion standard. Jackson v. State, 6 N.E.3d 1040, 1042
(Ind. Ct. App. 2014). An abuse of discretion occurs where the trial court’s
decision is clearly against the logic and effect of the facts and circumstances
before it or where the trial court misinterprets the law. Id. In determining
whether a trial court has abused its discretion, we neither reweigh evidence nor
judge witness credibility. Ripps v. State, 968 N.E.2d 323, 326 (Ind. Ct. App.
2014). Instead, we consider conflicting evidence in the light most favorable to
the trial court’s ruling. Id.
[8] Probation revocation is a two-step process, wherein the trial court first makes a
factual determination as to whether the probationer violated the terms of his
probation. Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008). Then, if a violation
is found, the court determines whether the violation warrants revocation. Id.
Section 1 – The evidence is sufficient to support a finding that Blair violated his probation. [9] Blair first submits that the evidence is insufficient to support the trial court’s
determination that he violated his probation. Because a probation revocation
proceeding is civil in nature, the State need only prove the alleged probation
violation by a preponderance of the evidence. Holmes v. State, 923 N.E.2d 479,
485 (Ind. Ct. App. 2010). Proof of a single violation is sufficient to permit a
Court of Appeals of Indiana | Memorandum Decision 02A03-1604-CR-833 | October 26, 2016 Page 4 of 8 trial court to revoke probation. Beeler v. State, 959 N.E.2d 828, 830 (Ind. Ct.
App. 2011), trans. denied.
[10] Here, the State alleged that Blair violated his probation by committing new
criminal offenses. In the context of probation revocation, the State need not
establish that the defendant was actually convicted of the new offense. Lightcap v.
State, 863 N.E.2d 907, 911 (Ind. Ct. App. 2007). However,
[w]hen a probationer is accused of committing a criminal offense, an arrest alone does not warrant the revocation of probation. Likewise, the mere filing of a criminal charge against a defendant does not warrant the revocation of probation. 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.
Jackson, 6 N.E.3d at 1042 (citations and quotation marks omitted).
[11] In its revocation petition, the State alleged that Blair had violated his probation
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Oct 26 2016, 8:44 am
regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Donald C. Swanson, Jr. Gregory F. Zoeller Deputy Public Defender Attorney General of Indiana Fort Wayne, Indiana Christina D. Pace Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Kent R. Blair, Sr., October 26, 2016 Appellant-Defendant, Court of Appeals Case No. 02A03-1604-CR-833 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Wendy W. Davis, Appellee-Plaintiff Judge Trial Court Cause No. 02D04-1407-F6-6
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 02A03-1604-CR-833 | October 26, 2016 Page 1 of 8 Case Summary [1] Kent R. Blair, Sr. appeals the revocation of his probation. He challenges the
sufficiency of the evidence to support a finding that he violated his probation
and the trial court’s decision to remand him to the Department of Correction
(“DOC”) for the remainder of his previously suspended term. Finding that the
evidence is sufficient and the trial court acted within its discretion in executing
his suspended sentence, we affirm.
Facts and Procedural History [2] The facts most favorable to the judgment are as follows: Blair married Rhonda
in 1999, and a son (“Son”) was born of the marriage. The couple owned a
residence on Scott Avenue (“the Property”). In 2012, Blair was convicted of
strangulation and domestic battery, both as class D felonies, stemming from a
domestic violence incident against Rhonda. In 2014, Rhonda sought and
obtained a protective order against Blair. Shortly thereafter, Blair violated the
protective order, pled guilty to level 6 felony invasion of privacy, and was
sentenced to probation. Meanwhile, Rhonda filed a petition for marital
dissolution. Blair was served but failed to appear for the dissolution hearing.
As part of the 2015 dissolution decree, Rhonda was awarded the Property, for
which the Allen County Commissioner issued her a quitclaim deed. State’s
Exs. 2, 4.
[3] At one point in 2015, Rhonda left the Property due to safety concerns involving
Blair. In October 2015, Rhonda came to the Property to pick up some clothing.
Court of Appeals of Indiana | Memorandum Decision 02A03-1604-CR-833 | October 26, 2016 Page 2 of 8 When she attempted to unlock the door, she discovered that the locks had been
changed. Blair and Son were inside. Blair told Rhonda to leave and claimed
that he was the owner of the Property. Rhonda refuted his claim of ownership,
ordered him to leave, and called the police. Blair and Son fled on foot before
the police arrived.
[4] A similar incident occurred in November 2015, in which Rhonda attempted to
enter the Property, discovered that the locks had again been changed, and
found that Blair and Son were inside. This time, Blair and Son did not leave,
and when Rhonda showed the responding officer her ownership papers, the
officer kicked in the door and arrested Blair for violating the protective order
and trespassing on Rhonda’s property.
[5] After the November 2015 incident, the State filed a petition to revoke Blair’s
probation, citing as violations his commission of invasion of privacy and
criminal trespass. At the close of the March 2016 revocation hearing, the trial
court found that Blair had violated his probation by committing new criminal
offenses and remanded him to the DOC to serve the two remaining years of his
previously suspended sentence.
[6] Blair now appeals. Additional facts will be provided as necessary.
Discussion and Decision [7] Blair maintains that the trial court abused its discretion in revoking his
probation. Probation is a matter of grace left to the trial court’s sound
discretion, not a right to which a criminal defendant is entitled. Prewitt v. State, Court of Appeals of Indiana | Memorandum Decision 02A03-1604-CR-833 | October 26, 2016 Page 3 of 8 878 N.E.2d 184, 188 (Ind. 2007). The trial court determines the conditions of
probation and may revoke probation if the probationer violates those
conditions. Id. We review a trial court’s probation violation determination
using an abuse of discretion standard. Jackson v. State, 6 N.E.3d 1040, 1042
(Ind. Ct. App. 2014). An abuse of discretion occurs where the trial court’s
decision is clearly against the logic and effect of the facts and circumstances
before it or where the trial court misinterprets the law. Id. In determining
whether a trial court has abused its discretion, we neither reweigh evidence nor
judge witness credibility. Ripps v. State, 968 N.E.2d 323, 326 (Ind. Ct. App.
2014). Instead, we consider conflicting evidence in the light most favorable to
the trial court’s ruling. Id.
[8] Probation revocation is a two-step process, wherein the trial court first makes a
factual determination as to whether the probationer violated the terms of his
probation. Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008). Then, if a violation
is found, the court determines whether the violation warrants revocation. Id.
Section 1 – The evidence is sufficient to support a finding that Blair violated his probation. [9] Blair first submits that the evidence is insufficient to support the trial court’s
determination that he violated his probation. Because a probation revocation
proceeding is civil in nature, the State need only prove the alleged probation
violation by a preponderance of the evidence. Holmes v. State, 923 N.E.2d 479,
485 (Ind. Ct. App. 2010). Proof of a single violation is sufficient to permit a
Court of Appeals of Indiana | Memorandum Decision 02A03-1604-CR-833 | October 26, 2016 Page 4 of 8 trial court to revoke probation. Beeler v. State, 959 N.E.2d 828, 830 (Ind. Ct.
App. 2011), trans. denied.
[10] Here, the State alleged that Blair violated his probation by committing new
criminal offenses. In the context of probation revocation, the State need not
establish that the defendant was actually convicted of the new offense. Lightcap v.
State, 863 N.E.2d 907, 911 (Ind. Ct. App. 2007). However,
[w]hen a probationer is accused of committing a criminal offense, an arrest alone does not warrant the revocation of probation. Likewise, the mere filing of a criminal charge against a defendant does not warrant the revocation of probation. 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.
Jackson, 6 N.E.3d at 1042 (citations and quotation marks omitted).
[11] In its revocation petition, the State alleged that Blair had violated his probation
by committing new offenses, one of which was invasion of privacy. A person
who knowingly or intentionally violates an ex parte protective order commits
invasion of privacy. Ind. Code § 35-46-1-15.1(2). Blair admitted that he was
aware of the protective order, which prohibited him from having contact, direct
or indirect, with Rhonda. He knew that even though Rhonda had left the
Property due to safety concerns, she frequented the Property. His action in
changing the locks (twice) shows that he expected her to come to the Property.
This evidence is particularly probative concerning the November incident, as
Court of Appeals of Indiana | Memorandum Decision 02A03-1604-CR-833 | October 26, 2016 Page 5 of 8 Rhonda had previously chased him away by calling the police during the
October incident. Evidence of this single violation is sufficient to support a
revocation of Blair’s probation. 1 As such, we conclude that the trial court acted
within its discretion in determining that Blair violated the terms of his
probation.
Section 2 – The trial court acted within its discretion in ordering the execution of Blair’s remaining term. [12] Blair also cites as error the trial court’s decision to remand him to the DOC for
the remainder of his previously suspended sentence. The trial court’s
sentencing decisions for probation violations are reviewable for an abuse of
discretion. Prewitt, 878 N.E.2d at 188. Having concluded that Blair committed
a probation violation, the trial court could impose one or more of the following
sanctions: (1) continue Blair’s probation, with or without modifying or
enlarging the conditions; (2) extend his probationary period for not more than
one year beyond the original probationary period; or (3) 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).
[13] Pursuant to the statute, the trial court chose to order the execution of all of
Blair’s previously suspended term. Blair incorrectly characterizes the court’s
1 Because we find the evidence sufficient to support the trial court’s finding that Blair committed invasion of privacy, we need not address his challenge to the sufficiency of the evidence concerning criminal trespass. Nevertheless, we note that his arguments concerning criminal trespass amount to invitations to reweigh evidence and reassess witness credibility, which we may not and will not do. Ripps, 968 N.E.2d at 326.
Court of Appeals of Indiana | Memorandum Decision 02A03-1604-CR-833 | October 26, 2016 Page 6 of 8 action as a “sentencing” decision and proceeds to analyze the nature of his
offense and his character. See Ind. Appellate Rule 7(B) (authorizing appellate
review and revision of “a sentence authorized by statute if, after due
consideration of the trial court’s decision, the Court finds that the sentence is
inappropriate in light of the nature of the offense and the character of the
offender.”). In Prewitt, 878 N.E.2d at 187-88, our supreme court emphasized
that an Appellate Rule 7(B) analysis is not the correct standard to apply when
reviewing a trial court’s actions in post-sentence probation violation
proceedings. Because “[a] trial court’s action in a post-sentence probation
violation proceeding is not a criminal sentence as contemplated by the rule …
[t]he review and revise remedy of [Rule] 7(B) is not available.” Jones v. State,
885 N.E.2d 1286, 1290 (Ind. 2008). Instead, we review the trial court’s decision
on sanctions for probation violations for an abuse of discretion. Prewitt, 878
N.E.2d at 188.
[14] In conducting our abuse of discretion analysis, we note Blair’s lengthy history
of offenses against Rhonda as well as probation failures. This includes class D
felony convictions in 2012 for strangulation and domestic battery in the
presence of a child under age sixteen. When Blair was released from the DOC
in 2013, he violated the terms of his probation, which resulted in a revocation
within the ensuing six months. He was convicted of invasion of privacy twice
in 2014, with both cases involving Rhonda. He was placed on probation, yet he
twice went to the Property awarded to Rhonda, changed the locks, and
occupied the premises. Simply put, Blair’s pattern of violating protective orders
Court of Appeals of Indiana | Memorandum Decision 02A03-1604-CR-833 | October 26, 2016 Page 7 of 8 and probation terms is indicative of a person with no regard for the law. There
is little reason to believe that he will discontinue this pattern absent
incarceration. Based on the foregoing, we find no abuse of discretion in the
trial court’s choice of sanction. Accordingly, we affirm.
[15] Affirmed.
Kirsch, J., and May, J., concur.
Court of Appeals of Indiana | Memorandum Decision 02A03-1604-CR-833 | October 26, 2016 Page 8 of 8