Malcolm M. Pettis v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 10, 2015
• Docket: 84A04-1408-CR-396
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Apr 10 2015, 10:15 am 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 Cara Schaefer Wieneke Gregory F. Zoeller Wieneke Law Office, LLC Attorney General of Indiana Plainfield, Indiana Christina D. Pace Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Malcolm M. Pettis, April 10, 2015

Appellant-Defendant, Court of Appeals Case No. 84A04-1408-CR-396 v. Appeal from the Vigo Superior Court State of Indiana, The Honorable David R. Bolk, Judge Appellee-Plaintiff. Cause Nos. 84D03-1104-FB-1220 and 84D03-0910-FB-3227

Kirsch, Judge.

[1] Malcom M. Pettis appeals the trial court’s determination that he violated the

terms of his probation and its imposition of a nine-year sentence. He raises the

following restated issues:

Court of Appeals of Indiana | Memorandum Decision 84A04-1408-CR-396 | April 10, 2015 Page 1 of 9 I. Whether the State presented sufficient evidence that Pettis violated a term of his probation; and II. Whether the trial court abused its discretion when it ordered Pettis to serve nine years of a previously-suspended ten-year sentence. [2] We affirm.

Facts and Procedural History [3] In March 2012, Pettis pleaded guilty to: (1) Class D felony assisting a criminal

and Class B felony dealing in cocaine pursuant to charges filed in 2009 and

2011. The trial court imposed a three-year executed sentence in the

Department of Correction (“DOC”) on the Class D felony assisting a criminal

conviction. On the Class B felony dealing in cocaine conviction, the trial court

imposed a thirteen-year sentence, with three years executed at DOC and ten

years suspended to probation. The trial court ordered the two sentences to run

consecutive to each other, resulting in a sixteen-year aggregate sentence, with

six years executed and ten suspended to probation.

[4] In April 2013, Pettis was released from DOC to probation and executed a

written probation agreement. As a term of his probation, Pettis agreed to “not

violate any laws or city ordinances.” Appellant’s App. at 69. He also

acknowledged that “[i]f it shall appear that I have violated the terms of my

probation or have been charged with having committed another offense, the

Court may revoke the suspension of sentence and may impose the sentence

which had been originally imposed.” Id. at 71.

Court of Appeals of Indiana | Memorandum Decision 84A04-1408-CR-396 | April 10, 2015 Page 2 of 9 [5] In February and March 2014, then-Detective Denzil Lewis of the Vigo County

Task Force was involved in an investigation of Pettis. On February 27, 2014, a

confidential informant, who was working with Detective Lewis, drove to

Pettis’s residence. When the informant arrived, Pettis exited the residence and

entered a parked vehicle, obtained marijuana from it, and, while Pettis was

seated in the parked car, sold it to the informant. A second controlled drug buy

occurred on March 4, 2014. During this transaction, Pettis was driving when

he sold cocaine to a confidential informant, who was a passenger. Both of

those transactions were videotaped by the confidential informant. On April 30,

2014, now-Sergeant Lewis, who was at that time employed with the Terre

Haute Police Department, observed Pettis driving a vehicle. Pettis failed to

signal a turn, and Sergeant Lewis initiated a traffic stop. Sergeant Lewis

determined that Pettis’s license status reflected that he was a habitual traffic

violator. Pettis was arrested and transported to jail.

[6] Several weeks prior to the April 30 traffic stop, on March 20, 2014, Pettis had

been charged with Class D felony operating a vehicle as a habitual traffic

violator. As a result of that criminal charge, the State filed a notice of probation

violation on March 21, 2014. Appellant’s App. at 72. On May 8, 2014, the State

filed an amended notice of probation violation, alleging that, in addition to the

March 20, 2014 habitual traffic violator charge, Pettis had violated the terms of

his probation due to having been charged on May 5, 2014, with numerous

additional criminal offenses, including: three counts of Class A felony dealing

in cocaine; three counts of Class C felony possession of cocaine; one count of

Court of Appeals of Indiana | Memorandum Decision 84A04-1408-CR-396 | April 10, 2015 Page 3 of 9 Class C felony dealing in marijuana; three counts of Class D felony maintaining

a common nuisance; and two counts of Class D felony being a habitual traffic

violator. Id. at 76.

[7] In July 2014, the trial court held an evidentiary hearing. Sergeant Lewis

testified to the two controlled drug buys in which he was involved when he was

on the Vigo County Drug Task Force, namely the buy on February 27, 2014

and the other on March 4, 2014. Photographs of each transaction, including

the substance sold, were admitted into evidence. Sergeant Lewis stated that he

field-tested the substance Pettis sold on March 4, 2014, and it tested positive for

cocaine. Upon cross-examination, Pettis’s counsel inquired whether Sergeant

Lewis sent the substances, identified during the hearing as marijuana and

cocaine, to the Indiana State Police laboratory for testing. Sergeant Lewis

replied, “[T]hat’s gonna be up to the [] case detective now. The case detective

will [] send that off to be tested[.]” Tr. at 17. Pettis’s counsel then asked if he

knew whether that had been done, to which Sergeant Lewis responded, “I do

not know whether or not that’s been done, I can only assume[,]” and “I cannot

give you anything definitive [], if it’s been sent off or not.” Id. at 17-18.

Sergeant Lewis also testified that there had been additional controlled buys

involving Pettis, but he was not the lead detective in charge of those

transactions, and thus, he did not testify to the specific circumstances

surrounding them.

Court of Appeals of Indiana | Memorandum Decision 84A04-1408-CR-396 | April 10, 2015 Page 4 of 9 [8] At the conclusion of the hearing, the trial court determined that Pettis had

violated the terms of his probation, revoked it, and sentenced him to serve nine

years of his previously-suspended sentence. Pettis now appeals.

Discussion and Decision

I. Sufficiency of the Evidence [9] “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) (citing 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. Ind. Code § 35-38-2-3(a). Pettis contends that the

evidence was insufficient to establish that he violated his probation. When the

sufficiency of evidence is challenged, we will neither “reweigh the evidence nor

reassess witness credibility.” Whatley v. State, 847 N.E.2d 1007, 1010 (Ind. Ct.

App. 2006). Rather, we look to the evidence most favorable to the State and

affirm the judgment if there is substantial evidence of probative value

supporting revocation. Id. The State’s burden of proof regarding alleged

probation violations is proof by a preponderance of the evidence. Id. When the

alleged violation is the commission of a new crime, the State need not show

that the probationer has been convicted of the crime. Id. (citing Richeson v.

State, 648 N.E.2d 384, 389 (Ind. Ct. App. 1995), trans. denied). The trial court

only needs to find that there was probable cause to believe that the defendant

violated a criminal law. Id.

Court of Appeals of Indiana | Memorandum Decision 84A04-1408-CR-396 | April 10, 2015 Page 5 of 9 [10] In this appeal, Pettis claims that the State “failed to carry its burden that Pettis

violated his probation by dealing or possessing cocaine, dealing marijuana, and

maintaining a common nuisance.” Appellant’s Br. at 2-3. Specifically, he argues

that the substances he sold to a confidential informant during videotaped drug

buys were not sent to the police laboratory for testing and were thus never

conclusively established as marijuana and cocaine. He maintains, “Field tests

are only able to determine whether a substance is ‘presumptive’ for a certain

drug; further testing at a lab must be done to confirm whether the substance is

in fact an illegal drug.” Id. at 4. Therefore, he claims, the State failed to show

that the substances that he sold were controlled substances and that reversal of

his probation revocation is warranted. We disagree.

[11] First, Pettis cites to no authority for the proposition that lab testing must occur

“to confirm whether the substance is in fact an illegal drug”; thus, he has

waived the issue for consideration. Ind. Appellate Rule 46(A)(8)(a); McMahon

v. State, 856 N.E.2d 743, 751 (Ind. Ct. App. 2006). Second, contrary to Pettis’s

assertion that the substances had only been subject to field-testing, Sergeant

Lewis did not testify that the substances were not sent to ISP lab; he testified

that he did not know whether the substances had been sent to the ISP lab.

Third, even assuming that, as claimed, the substances were only field-tested by

then-Detective Lewis, Indiana case law has established that the identity of a

controlled substance may be established through witness testimony and

circumstantial evidence. Cherry v. State, 971 N.E.2d 726, 732 (Ind. Ct. App.

2012) (quoting Helton v. State, 907 N.E.2d 1020, 1024 (Ind. 2009)), trans. denied.

Court of Appeals of Indiana | Memorandum Decision 84A04-1408-CR-396 | April 10, 2015 Page 6 of 9 The opinion of someone sufficiently experienced with the drug may establish its

identity. Vasquez v. State, 741 N.E.2d 1214, 1216 (Ind. 2001) (officer’s lay

testimony supported finding that substance was toluene); Boggs v. State, 928

N.E.2d 855, 860 (Ind. Ct. App. 2010) (evidence held sufficient to identify

substances where police officers testified that green leafy substance was

marijuana and substance on plate was methamphetamine), trans. denied.

[12] Regardless, even if, as Pettis claims, the State failed to prove that the substances

Pettis sold to the confidential informant were illegal substances, Pettis concedes

that the State carried its burden of proving that he drove on three occasions as a

habitual traffic violator. Appellant’s Br. 3, 5. Each of those was a felony offense.

It is well settled that violation of a single condition of probation is sufficient to

revoke probation. Jenkins v. State, 956 N.E.2d 146, 149 (Ind. Ct. App. 2011),

trans. denied. Considering the record before us, we conclude the evidence was

sufficient to show that Pettis violated the terms of his probation.

II. Sentence Imposed [13] Pettis claims that the trial court abused its discretion when it ordered Pettis to

serve nine years of a previously-suspended ten-year sentence. Where a trial

court has exercised its grace by granting a defendant probation in lieu of

incarceration, it has considerable leeway in deciding how to proceed where the

defendant then violates the conditions of his probation. Prewitt, 878 N.E.2d at

188. Once a trial court finds that a person has violated a term of his or her

probation, the court may impose one or more of the following sanctions: (1)

Court of Appeals of Indiana | Memorandum Decision 84A04-1408-CR-396 | April 10, 2015 Page 7 of 9 continue the person on probation, with or without modifying or enlarging the

conditions; (2) extend the person’s 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.

[14] The sanction imposed by the trial court upon a finding of a probation violation

is reviewed on appeal for an abuse of discretion. Brandenburg v. State, 992

N.E.2d 951, 953 (Ind. Ct. App. 2013), trans. denied; Sanders v. State, 825 N.E.2d

952, 956 (Ind. Ct. App. 2005), trans. denied. An abuse of discretion occurs

where the trial court’s decision is clearly against the logic and effect of the facts

and circumstances before the court. Brandenburg, 992 N.E.2d at 953.

[15] Pettis argues that the trial court’s decision to order him to serve nine years was

an abuse of discretion because the State only met its burden of proving that he

drove on three occasions as a habitual traffic violator, and each offense was

“minor in nature.” Appellant’s Br. at 5. Therefore, he contends, “Imposing a 9-

year sentence for a minor violation constituted an abuse of discretion.” Id. We

reject this claim.

[16] Here, Pettis was placed on probation in April 2013. In less than one year, he

was videotaped selling marijuana and cocaine in at least two controlled drug

buys. In May 2014, he was charged with committing twelve felonies, including

three counts of Class A felony dealing in cocaine, three counts of Class C felony

possession of cocaine, three counts of Class D felony maintaining a common

Court of Appeals of Indiana | Memorandum Decision 84A04-1408-CR-396 | April 10, 2015 Page 8 of 9 nuisance, one count Class C felony dealing in marijuana, and two counts of

Class D felony operating a vehicle as a habitual traffic violator. The trial court

found:

I have evidence of two separate narcotic dealing transactions [], and then I have two separate driving offenses, H.T.V. offenses, and I think the State’s met its burden to prove by a preponderance of the evidence that Mr. Pettis violated the law with respect to those occasions. So I’m finding that Mr. Pettis has violated the terms of his probation. Tr. at 29. Although a trial court has several alternative sanctions it may impose

where it has found that a defendant has violated his probation, one of those

sanctions is to order execution of the sentence that was previously suspended.

See Ind. Code § 35-38-2-3(h). Noting that Pettis “hasn’t modified his lifestyle”

while out on probation for a year, the trial court terminated his probation and

ordered him to serve nine years. Tr. at 30. This was less than the balance of his

remaining sentence. We find that the trial court’s imposition of the nine-year

sentence was not an abuse of discretion.

[17] Affirmed.

Friedlander, J., and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 84A04-1408-CR-396 | April 10, 2015 Page 9 of 9