MEMORANDUM DECISION Jun 04 2015, 9:06 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be 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 Kimberly A. Jackson Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana
Cynthia L. Ploughe Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Kraig Martin, June 4, 2015
Appellant-Defendant, Court of Appeals Cause No. 49A04-1409-CR-434 v. Appeal from the Marion Superior Court Cause No. 49F15-1301-FD-3980 State of Indiana, Appellee-Plaintiff. The Honorable John Chavis, Judge The Honorable Hugh Patrick Murphy, Magistrate
Barnes, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-434 June 4, 2015 Page 1 of 14 Case Summary [1] Kraig Martin appeals the revocation of his probation and his placement in
community corrections. We affirm in part and reverse in part.
Issues [2] Martin raises two issues, which we restate as:
I. whether there is sufficient evidence to support the revocation of his probation and placement in community corrections; and
II. whether the trial court properly ordered him to pay $660 in fees following the revocation of his probation.
Facts [3] On April 15, 2014, Martin pled guilty to one count of Class D felony theft and
one count of Class B misdemeanor unlawful entry of a motor vehicle. Martin
received a total sentence of 730 days, with 365 days executed and 365 days
suspended to probation. The executed portion of Martin’s sentence was to be
served through Marion County Community Corrections (“MCCC”) on home
detention. On July 2, 2014, the trial court found Martin violated conditions of
home detention and ordered him to serve the remainder of his executed
sentence through work release at the Duvall Residential Center (“DRC”).
[4] On August 6, 2014, MCCC filed a petition alleging Martin had violated DRC
rules by “engaging in trafficking”; by possessing “an electronic device”; by
using or possessing “a controlled substance”; by “refusing a mandatory
Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-434 June 4, 2015 Page 2 of 14 program”; and by failing “to comply with his monetary obligation.” App. p.
34. The petition further stated:
On 7/7/14, the defendant received a disciplinary conduct report for trafficking, for attempting to bring in 25 grams of loose tobacco with 7 cigarette rolling papers to DRC. On 7/7/14, the defendant received a disciplinary conduct report for possession of an electronic device. On 7/23/14, the defendant received a disciplinary conduct report for possession or use of a controlled substance. The report indicated that there was a syringe found under the defendant’s bunk mattress. On 7/23/14, the defendant received a disciplinary conduct report for refusing a mandatory program. A violation is being filed in lieu of a disciplinary hearing to address the disciplinary conduct reports. As of 8/6/14, the defendant has paid $38.00 toward his Work Release fees and is currently $214.50 in arrears to Marion County Community Corrections. The defendant is currently unemployed. Id. at 34-35. On August 12, 2014, the State also filed a petition to revoke
Martin’s probation based on his violation of MCCC/DRC rules.
[5] The trial court held a joint hearing on both petitions. The State presented only
one witness, William Beck, who is a “Court Team Liaison” working for
MCCC. Tr. p. 4. Beck did not know Martin personally and had no personal
knowledge of any of the alleged violations against Martin. During his
testimony, Beck read from Martin’s MCCC file regarding the alleged violations,
which had been prepared by another MCCC employee. The testimony tracked
almost verbatim the language of the petition quoted above. Beck was unable to
provide further detail regarding the alleged violations on cross-examination. He
could not say whether any controlled substance was found in the syringe
allegedly found under Martin’s bed. It also was revealed that after the filing of
Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-434 June 4, 2015 Page 3 of 14 the notice of violation, Martin completed the mandatory program he was
alleged not to have completed.
[6] During cross-examination, Beck indicated that he had no knowledge of what
kind of electronic device Martin was alleged to have possessed in violation of
DRC rules. At that time, Martin introduced an email between his attorney and
the DRC employee who had confiscated a cell phone from Martin, Michael
Nesbitt.1 The attorney had written, “It’s my understanding that Mr. Martin
gave you his cell phone upon his return from a job search pass, but after
checking, you realized that he was not allowed to have a phone before securing
employment and remaining at that employment for a certain amount of time.”
Ex. A. Nesbitt responded, “That is correct after checking to see if Resident
Martin was approved it came to my knowledge that Resident Martin was in fact
not authorized to have such a [sic] electronic device . . . .” Id. During his
testimony, Martin attempted to explain that he thought he was allowed to have
a cell phone when he went outside DRC and had to put it in a locker when he
returned to the facility, but he did not realize he was absolutely prohibited from
having one.
[7] At the conclusion of this hearing, the State said,
As to the cell phone, um—if the Court finds it persuasive that…in the e-mail, that he was given the cell phone by someone else, and that— that was the Defendant’s testimony—then the State would have to
1 Martin’s attorney had written the email in lieu of subpoenaing Nesbitt to testify at the revocation hearing.
Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-434 June 4, 2015 Page 4 of 14 withdraw that violation. Um—especially if he was just coming in to Duvall, and was then giving that cell phone back for the lockers, and that the violation wasn’t for “inside” the actual center itself. Tr. p. 39.
[8] The trial court then stated,
I find by a preponderance of the evidence that he did have tobacco, which is prohibited under personal property allowed. It says that explicitly in the rules. Rolling papers and syringe are paraphernalia— those are prohibited too. Even though the—they’re withdrawing the electronic device, the Exhibit A says that Nesbitt determined that he had no permission to have the device. So that fairly speaks to its—for itself too, I think. Id. at 42. The trial court made no finding with respect to the allegations that
Martin had failed to complete a mandatory program or failed to pay fees. The
trial court then revoked both Martin’s placement in DRC and his probation and
required him to serve the remainder of his suspended sentence. It also stated, in
response to a question regarding fees, that Martin was “[i]ndigent—unless
there’s a restitution claim,” which there was not. Tr. p. 43. The trial court did
not state that it would require Martin to pay any fees. In a subsequent written
order, however, the trial court ordered Martin to pay $660 in fees. Martin now
appeals.
Analysis
I. Sufficiency of the Evidence
[9] Martin is challenging both the revocation of his placement in MCCC and his
probation. “For purposes of appellate review, we treat a hearing on a petition
to revoke a placement in a community corrections program the same as we do a
Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-434 June 4, 2015 Page 5 of 14 hearing on a petition to revoke probation.” Cox v. State, 706 N.E.2d 547, 549
(Ind. 1999). “Both probation and community corrections programs serve as
alternatives to commitment to the Department of Correction and both are made
at the sole discretion of the trial court.” Id. Placement in either a community
corrections program or on probation is not a right and is a “matter of grace”
and a “conditional liberty that is a favor . . . .” Id. As a matter of due process,
a defendant facing revocation of either a community corrections placement or
probation “is entitled to representation by counsel, written notice of the claimed
violations, disclosure of the opposing evidence, an opportunity to be heard and
present evidence, and the right to confront and cross-examine witnesses in a
neutral hearing before the trial court.” Id. at 550.
[10] Before addressing the sufficiency of the evidence to revoke Martin’s community
corrections placement and his probation, we note his argument that the State
failed to provide adequate notice of the allegations against him. Specifically, he
observes that although he was alleged to have committed “trafficking” in
tobacco, it failed to present any evidence that he trafficked in tobacco as defined
in the DRC rule book as opposed to merely possessing it.2 The trial court also
did not find that Martin trafficked in tobacco as opposed to merely possessing
it. Additionally, Martin notes that he was alleged to have possessed a
2 The DRC rule book defined “trafficking” as having the same definition as the crime of prison trafficking now found in Indiana Code Section 35-44.1-3-5, which requires intent to deliver contraband to an inmate. There was no evidence of whether Martin intended to deliver any tobacco to any other person as opposed to keeping the tobacco for personal use.
Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-434 June 4, 2015 Page 6 of 14 controlled substance but the State only presented evidence and the trial court
only found that he possessed a syringe—i.e., paraphernalia—but he was not
alleged to have possessed paraphernalia, which is a separate violation according
to the DRC rule book.
[11] The written notice of an alleged community corrections or probation violation
must be detailed enough to allow the defendant to adequately prepare a defense
to the charge. Long v. State, 717 N.E.2d 1238, 1240 (Ind. Ct. App. 1999).
Community corrections or probation “may not be revoked based upon proof of
an act that is merely similar in nature to the violation charged in the written
notice.” Id. In Long, a probationer was alleged to have “tampered” with his
ankle transmitter by attempting to remove it, but at the revocation hearing the
State only presented sufficient evidence that he had attempted to “fix” his
transmitter after he had broken it after falling on it. Id. Regardless, the trial
court found that there was a separate home detention/probation rule that
prohibited probationers from attempting to fix an ankle transmitter and revoked
probation on that basis. On appeal we reversed, holding that probation could
not be revoked based upon an act that was similar but not identical to the
charged act. Id. at 1241 (citing Harder v. State, 501 N.E.2d 1117, 1121 (Ind. Ct.
App. 1986) (reversing revocation of probation where defendant was alleged to
have operated a vehicle with BAC of .10 or greater but State only proved
defendant had operated a vehicle while impaired)). Based upon the holdings in
Long and Harder, we cannot say it was appropriate to revoke Martin’s probation
Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-434 June 4, 2015 Page 7 of 14 and DRC placement based upon evidence that he merely possessed tobacco and
a syringe when he was not charged with possessing tobacco or paraphernalia.
[12] This leaves the only remaining allegation that the trial court found to be proven,
Martin’s possession of a cell phone. Martin contends there was insufficient
evidence that he possessed one in violation of DRC rules, and notes the State’s
comment in closing argument that “if the Court finds it persuasive that . . . in
the e-mail, that he was given the cell phone by someone else, and that—that
was the Defendant’s testimony—then the State would have to withdraw that
violation.” Tr. p. 39.
[13] The State must prove a violation of community corrections rules or probation
by a preponderance of the evidence. See Heaton v. State, 984 N.E.2d 614, 617
(Ind. 2013). When reviewing the sufficiency of the evidence to support
revocation of a community corrections placement or probation, we consider
only the evidence most favorable to the trial court’s decision without
reweighing evidence or judging witness credibility. Figures v. State, 920 N.E.2d
267, 272 (Ind. Ct. App. 2010). We will affirm if there is substantial evidence of
probative value to support the conclusion that a defendant has violated any
terms of community corrections placement or probation. Id. Even if a trial
court has made erroneous findings with respect to some alleged violations,
proof of any one violation of community corrections rules or probation is
sufficient on appeal to affirm revocation. Id. at 273.
Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-434 June 4, 2015 Page 8 of 14 [14] In part, Martin challenges the probative value of Heck’s testimony, given that
he had no personal knowledge of Martin or his alleged possession of a cell
phone; indeed, Heck did not even know what type of electronic device Martin
was alleged to have possessed. Heck merely was reading notes placed in
Martin’s file by an employee at DRC, who in turn may or may not have had
any personal knowledge of whether Martin possessed a cell phone. To the
extent Heck was relating hearsay, or even hearsay of possibly double or triple
layers, Martin did not object to Heck’s testimony on that or any other basis.
Although not all hearsay is necessarily admissible in probation revocation
hearings, a defendant must object to such evidence in order to preserve the issue
for appeal. Marsh v. State, 818 N.E.2d 143, 145 (Ind. Ct. App. 2004). Because
Martin did not object to Heck’s testimony, it was properly before the trial court
for its consideration.
[15] In any event, the more definitive evidence regarding Martin’s possession of a
cell phone was the exhibit introduced by Martin relating the email exchange
between his attorney and Nesbitt. Nesbitt clearly stated in the email that
Martin was not authorized to possess a cell phone, that he confiscated the
phone after learning that information, that he then asked Martin if he was
aware of the DRC rules regarding cell phones, and Martin responded with an
obscenity. Martin claimed during his testimony that he thought he was allowed
to have a cell phone outside of the DRC premises. However, the DRC rule
book clearly lists “cell phones” as a “strictly prohibited” item. Ex. B. p. 17. It
also states that “unauthorized” possession of a cell phone is a Class B rule
Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-434 June 4, 2015 Page 9 of 14 violation. Id. Viewed in a light most favorable to the trial court’s ruling, this
evidence establishes that Martin violated DRC rules by possessing a cell phone
without authorization.
[16] We also do not believe the State unequivocally withdrew the allegation
regarding the cell phone. Rather, it offered to withdraw the allegation “if the
Court finds it persuasive . . . that he was given the cell phone by someone else .
. . .” Tr. p. 39 (emphasis added). The trial court evidently did not find Martin’s
attempted explanation for his possession of the cell phone to be persuasive, and
it was not required to do so. That being the case, the trial court was not barred
from revoking Martin’s placement in DRC and his probation on the basis of his
unauthorized possession of a cell phone.
II. Imposition of Fees
[17] Martin also contends that even if his DRC placement and probation were
properly revoked, the trial court erred in imposing fees of $660 against him in
its written probation revocation order. He notes that at the end of the
revocation hearing, a representative of the State asked, “Your Honor, in regards
to fees? Did you want those waived also?” Tr. p. 43. The trial court
responded, “Indigent—unless there’s a restitution claim.” Id. There was no
restitution claim. The $660 in fees was made up of $100 for public defender
costs and $560 in probation fees.
[18] With respect to the public defender fee, there was no authority for the trial court
to impose such a fee after finding Martin to be indigent. See Banks v. State, 847
Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-434 June 4, 2015 Page 10 of 14 N.E.2d 1050, 1052 (Ind. Ct. App. 2006), trans. denied. We reverse that portion
of the fee order.
[19] However, despite the finding of indigency, there was no absolute prohibition
against the trial court ordering Martin to pay the probation fees. An indigent
defendant is not shielded from all costs or fees related to a conviction. Berry v.
State, 950 N.E.2d 798, 799 (Ind. Ct. App. 2011); see also Banks, 847 N.E.2d at
1052 (reversing imposition of public defender fee upon indigent defendant but
not other court costs controlled by different statutes). Indiana Code Section 33-
37-2-3 requires a trial court to hold an indigency hearing before imposing costs
on a criminal defendant, but it does not bar the imposition of costs if a
defendant is indigent; it simply bars the imprisonment of the person for failure
to pay costs.3 Whedon v. State, 765 N.E.2d 1276, 1279 (Ind. 2002). The trial
court’s written order did not specify that Martin could not be imprisoned for
failing to pay the costs, but it did not have to do so. See id. Thus, we affirm the
trial court’s imposition of $560 in probation costs against Martin, with the
understanding that he cannot be imprisoned should he fail to pay those costs.
3 We recently held that a trial court may, within its discretion, delay holding an indigency hearing regarding payment of probation fees until a defendant completes his or her sentence. Johnson v. State, -- N.E.3d --, No. 49A02-1406-CR-437 ¶ 4 (Ind. Ct. App. Mar. 6, 2015). The trial court here instead made a determination of indigency at the revocation hearing.
Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-434 June 4, 2015 Page 11 of 14 Conclusion [20] There was sufficient evidence to revoke Martin’s probation and his placement
in community corrections based on the allegation that he possessed an
electronic device in violation of DRC rules. We reverse the imposition of the
$100 public defender fee against Martin but affirm the remaining $560 in fees.
[21] Affirmed in part and reversed in part.
Bailey, J., concurs.
Riley, J., concurs and dissents with opinion.
Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-434 June 4, 2015 Page 12 of 14 IN THE COURT OF APPEALS OF INDIANA
Kraig Martin, Court of Appeals Cause No. 49A04-1409-CR-434 Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff
Riley, Judge concurring in part and dissenting in part
[22] While I concur with the majority’s conclusion on the adequacy of the State’s
notice of Martin’s charges, I respectfully dissent from its finding that the State
presented sufficient evidence to sustain Martin’s possession of a cellphone in
violation of DRC rules. As pointed out by the majority, the only evidence
presented by the State was the testimony of Heck, who did not have personal
knowledge of the type of electronic device or whether Martin was even allowed
to possess a cell phone. In turn, Martin testified that an officer handed him his
Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-434 June 4, 2015 Page 13 of 14 cell phone when he left for an authorized job search outing and the officer did
not inform him that he was not allowed to possess a cell phone in the facility.
When Martin returned from his employment search several hours later, he
handed the phone back to the officer when entering the building. DRC
employee Nesbitt corroborates Martin’s testimony in part. Even the State
appears to acknowledge the weakness of its own charge when it admitted the
possible credibility of Martin’s testimony “especially if [Martin] was just
coming in to Duvall, and was then giving that cell phone back for the lockers,
and that the violation wasn’t for ‘inside’ the actual center itself.” (Transcript p.
39). I conclude that there is no substantial evidence of probative value that
Martin possessed a cell phone without authorization.
Furthermore, in so far the majority affirmed the trial court’s imposition of
probation fees, I dissent. At the conclusion of the revocation hearing, the trial
court was specifically asked whether it wanted the “fees” “waived.” (Tr. p. 43).
The trial court responded “Indigent – unless there’s a restitution claim.” (Tr. p.
43). As no restitution was claimed, the record established that Martin was
found indigent for purposes of fees. Despite this finding, the trial court’s
written sentencing order imposes a monetary obligation for probation fees.
When oral and written sentencing statements conflict, we examine the two
statements together to discern the intent of the sentencing court. Walker v. State,
932 N.E.2d 733, 738 (Ind. Ct. App. 2010). As I conclude that the trial court
specifically and unambiguously waived the probation fees, I would remand for
a correction of this clerical error. See id.
Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-434 June 4, 2015 Page 14 of 14