MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Feb 21 2020, 5:54 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.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Valerie K. Boots Curtis T. Hill, Jr. Andrew Stebbins Attorney General of Indiana Marion County Public Defender Agency George P. Sherman – Appellate Division Supervising Deputy Attorney Indianapolis, Indiana General Caryn N. Szyper Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Martez McGraw, February 21, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-1029 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Barbara Cook Appellee-Plaintiff. Crawford, Judge Trial Court Cause No. 49G01-1408-FB-39384
Mathias, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1029 | February 21, 2020 Page 1 of 22 [1] Martez McGraw (“McGraw”) appeals the Marion Superior Court’s revocation
of his probation. McGraw presents three issues for our review, which we restate
as:
I. Whether the trial court abused its discretion by admitting into evidence photos seized from McGraw’s phone that were outside the scope of the warrant authorizing the search of the phone;
II. Whether the trial court violated McGraw’s due process rights by failing to issue a written statement regarding the evidence the court relied on and its reasons for revoking McGraw’s probation; and
III. Whether the trial court abused its discretion in sentencing McGraw.
[2] Although we are greatly concerned about the clearly unreasonable search of
McGraw’s phone, the photos were not the basis of the trial court’s decision to
revoke McGraw’s probation. And although the trial court did not issue a
written order detailing the court’s reasoning for revoking McGraw’s probation,
the court orally explained its reasoning at the revocation hearing. In addition,
the transcript of this hearing is sufficient to satisfy the due process requirement
of a written statement. Lastly, given the fact that this was the fourth time that
McGraw had violated the terms of his placement, we cannot say that the trial
court abused its discretion by ordering McGraw to serve seven years of his
remaining fourteen-year sentence in the Department of Corrections (“DOC”).
Facts and Procedural History [3] On September 25, 2014, McGraw pleaded guilty in two separate causes to Class
B felony robbery and Class A misdemeanor carrying a handgun without a
license. On February 12, 2016, McGraw was sentenced to twenty years, with Court of Appeals of Indiana | Memorandum Decision 19A-CR-1029 | February 21, 2020 Page 2 of 22 six years executed in community corrections, fourteen years suspended and one
year of supervised probation.
[4] Just over three months later, on May 27, 2016, the State filed a notice alleging
that McGraw had violated the terms of his placement in Marion County
Community Corrections (“MCCC”). The trial court held a hearing on this
notice on June 23, 2016, at which McGraw admitted to the violations. The trial
court then ordered McGraw to remain in community corrections. This was
McGraw’s first violation.
[5] Shortly thereafter, on July 6, 2016, the State filed another notice alleging that
McGraw had violated the terms of his community corrections placement. At a
hearing held on September 28, 2016, McGraw again admitted to the violations,
and the trial court again ordered McGraw to remain in community corrections.
This was McGraw’s second violation.
[6] On October 17, 2016, the State again filed notice alleging that McGraw had
violated the terms of his placement. At a hearing on October 27, 2016, McGraw
yet again admitted to the violation. This was McGraw’s third violation. This
time, the trial court revoked McGraw’s placement in community corrections
and ordered him to serve the balance of the six-year executed portion of his
sentence in DOC. McGraw was released from DOC custody on November 24,
2017, and began his one year of formal probation. Although McGraw had only
one year to serve on formal probation, fourteen years of his sentence remained
suspended.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1029 | February 21, 2020 Page 3 of 22 [7] On January 27, 2018, Indianapolis Metropolitan Police Department (“IMPD”)
Officer Scott Nichols (“Officer Nichols”) accompanied MCCC officers who
were conducting home visits of those serving sentences on community
corrections. During a visit of one home, Officer Nichols found McGraw, who
stated that he did not live at that particular home. Officer Nichols permitted
McGraw to leave, but a subsequent search of the home found prohibited items,
including a handgun found in the kitchen. The homeowner telephoned
McGraw, who claimed that he would come back to the home to “do the right
thing,” but McGraw never returned. Tr. p. 20. McGraw turned himself in to
IMPD officers a few days later.
[8] Officer Nichols interviewed McGraw, and McGraw described the drugs and
money that were inside the home that had been searched on January 27.
McGraw said he would “take all of [the homeowner]’s charges,” but did not
want to discuss the handgun found in the home. Tr. p. 30. Officer Nichols did
not arrest McGraw at that time. Instead, he applied for, and ultimately
received, a warrant to search McGraw’s mobile phone. The issued warrant
authorized the police to search McGraw’s phone for data stored between
January 25 and January 27, 2018.
[9] Officer Nichols searched McGraw’s mobile phone and found three digital
photos. Two of the photos show McGraw pointing a handgun at the camera,
and the other shows a handgun on the floor. Ex. Vol., State’s Exs. 5–7. These
photos, however, were taken on January 13, 2018, twelve days outside the
scope of the search warrant.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1029 | February 21, 2020 Page 4 of 22 [10] On February 1, 2018, the State charged McGraw, in Cause No. 49G20-1802-
F4-4001 (“Cause No. F4-4001”), with Level 4 felony unlawful possession of a
firearm by a serious violent felon (“SVF”) and Class A misdemeanor possession
of a synthetic drug. On April 18, 2018, the State charged McGraw in Cause No.
49G20-1804-CM-12574 (“Cause No. CM-12574”) with Class A misdemeanor
possession of marijuana.
[11] On February 5, 2018, the State filed a notice alleging that McGraw had violated
two conditions of his probation by being charged with in Cause No. F4-4001
and by failing to report for a drug screen. The State filed an amended notice of
probation violation on February 9, adding an additional allegation that
McGraw failed to report to the probation department. And the State filed
another amended notice on August 6, alleging that McGraw had been charged
in Cause No. CM-12574.
[12] On February 27, 2019, McGraw pleaded guilty to Class A misdemeanor
possession of a synthetic drug in Cause No. F4-4001, and the State dismissed
the Level 4 felony SVF charge. That same day, McGraw pleaded guilty to Class
B misdemeanor possession of marijuana in Cause No. CM-12574.
[13] The trial court held a probation revocation hearing on April 4, 2019. 1
McGraw’s counsel indicated that he intended to challenge the admissibility of
1 The chronological case summary (“CCS”) indicates that probation hearings were also held on April 5, 2018, June 28, 2018, August 23, 2018, October 24, 2018, December 13, 2018, February 14, 2019, and March 14, 2019. Transcripts from these hearings are not included in the record before us, and the CCS entries for
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1029 | February 21, 2020 Page 5 of 22 the photos found on McGraw’s phone on grounds that they were illegally
obtained. The probation officer and the prosecuting attorney then explained to
the court the bases of the State’s allegations. With regard to the most recent
allegation, the prosecuting attorney stated that McGraw had pleaded guilty in
Cause No. CM-12574 to Class B misdemeanor possession of marijuana and
received a sentence of time served. To support this allegation, the State
submitted the sentencing order and probable cause affidavit filed in Cause No.
CM-12574, showing that McGraw was sentenced to time served on February
27, 2019. Ex. Vol., State’s Ex. 2.
[14] With regard to the allegation that McGraw failed to report to probation as
required, the probation officer stated that McGraw “we saw him out in the field
during a field visit on January 25, 2018 and he was scheduled to come back to
probation on February 7, 2018 and he failed to report.” Tr. p. 9. In support of
this allegation, the State submitted into evidence a sign-in sheet for February 7,
2018, showing that McGraw never signed in on that day for reporting to the
probation department. Ex. Vol., State’s Ex. 1.
[15] With regard to the allegation that McGraw had been charged in Cause No. F4-
4001, McGraw’s attorney admitted to the trial court that McGraw had been
convicted in that case of possession of a synthetic drug and sentenced to time
served. The trial court stated, “[t]he fact that he was charged with that offense
each of these hearings merely state: “Hearing Result: Commenced and concluded.” Appellant’s App. pp. 8– 10.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1029 | February 21, 2020 Page 6 of 22 [in Cause No. F4-4001] is sufficient for me and for this hearing.” Tr. p. 13.
When asked if he had been charged with unlawful possession of a firearm by an
SVF, McGraw stated, “Yes, ma’am, I was charged with it but not convicted.”
Id. The trial court then concluded, “so we move [on] from there. We have
evidence that has been admitted to the Court on each of the allegations. The
Court at this time finds that there was a violation of his probation. The Court at
this time revokes that probation. So, we are at the point of sentencing[.]” Id. at
13–14.
[16] At the sentencing portion of the hearing, the State called Officer Nichols to
testify. When the State moved to admit the photos found on McGraw’s phone,
McGraw objected, claiming that the admission of these photos violated his
Fourth Amendment rights because they were outside the scope of the warrant.
Officer Nichols testified that he did not notice the date restrictions on the search
warrant until after he had searched McGraw’s phone. The trial court admitted
the photos over McGraw’s objection.
[17] At the conclusion of the hearing, the trial court stated:
Mr. McGraw, the thing that strikes me the most is that you got this huge break of a fourteen (14) year sentence that was reduced to probation basically. . . .
***
[Y]ou got this huge break for a really serious offense. It could have [been] a whole lot worse. During the time you have been on probation, you pick up two (2) additional cases and then there is the failure to report to probation. I don’t understand that, I don’t
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1029 | February 21, 2020 Page 7 of 22 understand how you get this huge break and are immediately grateful and try to do everything you can to stay out of anymore involvement of the Criminal Justice System and you do things that are just the opposite. That is what I am trying to understand where your head was.
Tr. p. 34–35. McGraw responded, “I got caught up. The reason why I am in
here, I was going down the wrong path and God sat me down here to get my
head back on straight.” Id. at 35. The trial court continued:
Rather than you facing a murder[,] [y]ou got a reduced sentence, a lesser crime to plead to and got probation basically. So yea[h], you were on the wrong road but you would have thought that that break would send you back on the right track. What happened?
Id. McGraw responded that he had made a “mistake.” Id.
[18] At the conclusion of the hearing, the trial court ordered McGraw to serve seven
years of the remaining fourteen years of his sentence in DOC, four years on
community corrections, and three years on probation. McGraw now appeals.
Probationers’ Rights [19] Probation is a matter of grace, not a right to which a criminal defendant is
entitled. Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013). 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. A trial court abuses its discretion if its decision is clearly against
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1029 | February 21, 2020 Page 8 of 22 the logic and effect of the facts and circumstances, or if the trial court
misinterprets the law. Id. 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; next, if a violation is found, then the trial court
must determine the appropriate sanctions for the violation. Id.
[20] Probationers are not entitled to the full array of constitutional rights afforded to
criminal defendants at trial. Lightcap v. State, 863 N.E.2d 907, 910 (Ind. Ct.
App. 2007) (citing Cox v. State, 706 N.E.2d 547, 550 (Ind. 1999)). Still, the Due
Process Clause of the Fourteenth Amendment imposes procedural and
substantive limits on the revocation of the conditional liberty created by
probation. Id. (citing Braxton v. State, 651 N.E.2d 268, 269 (Ind. 1995)).
Specifically:
There are certain due process rights . . . which inure to a probationer at a revocation hearing. These include written notice of the claimed violations, disclosure of the evidence against him, an opportunity to be heard and present evidence, the right to confront and cross-examine witnesses, and a neutral detached hearing body. Indiana Code § 35-38-2-3(e) also ensures the probationer the right to confrontation, cross-examination, and representation by counsel.
Id. at 910–11 (quoting Isaac v. State, 605 N.E.2d 144, 148 (Ind. 1992) (footnote
omitted)); accord Cox, 706 N.E.2d at 549. “Due process [also] requires a written
statement by the fact finder regarding the evidence relied upon and the reasons
for the revocation of probation.” Washington v. State, 758 N.E.2d 1014, 1018
(Ind. Ct. App. 2001).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1029 | February 21, 2020 Page 9 of 22 I. Admission of Evidence
[21] McGraw first argues that the trial court abused its discretion by admitting
evidence at the revocation hearing that was obtained in violation of McGraw’s
Fourth Amendment rights. We review decisions regarding the admission of
evidence in probation revocation hearings for an abuse of discretion. Holmes v.
State, 923 N.E.2d 479, 483 (Ind. Ct. App. 2010). The Indiana Rules of Evidence
do not apply in probation matters, and trial courts in probation revocation
proceedings are “allow[ed] even more flexibility in the admission of
evidence[.]” Christie v. State, 939 N.E.2d 691, 693 (Ind. Ct. App. 2011) (citing
Indiana Evid. Rule 101(d)(2) (providing that the Rules of Evidence, other than
those with respect to privileges, “do not apply in . . . [p]roceedings relating
to . . . probation.”).
[22] McGraw challenged the admission of three photos recovered from his mobile
phone. Even though the police, laudably, obtained a warrant authorizing the
search of McGraw’s phone, the clear terms of this warrant limited the search to
data stored between January 25 and January 27, 2018. The photos at issue here
were stored on January 13, 2018, twelve days outside the scope of the warrant.
Officer Nichols gave no explanation for his failure to abide by the terms of the
search warrant; he merely indicated that he failed to notice the date restrictions
until after he had searched the phone.
[23] We therefore agree with McGraw that the seizure of the photos was outside the
scope of the warrant authorizing the search of his phone. See State v. Mansor,
421 P.3d 323, 344 (Or. 2018) (holding that any evidence outside the scope of Court of Appeals of Indiana | Memorandum Decision 19A-CR-1029 | February 21, 2020 Page 10 of 22 the warrant should have been suppressed where the warrant authorized a search
of the internet history of defendant’s computer for June 12, 2011, but the search
of the defendant’s computer extended to items well beyond this limited scope);
State v. Figgures, 839 N.E.2d 772, 777–78 (Ind. Ct. App. 2005) (holding that
search and seizure of defendant’s mail was outside the scope of the warrant
authorizing police to search for and seize cocaine and records pertaining to the
sale of cocaine where warrant affidavit focused on defendant’s roommate, the
State presented no evidence implicating defendant, and defendant’s mail was
irrelevant to criminal activity being investigated by the police), trans. denied.
[24] The State does not argue that the photos were admissible under any exception
to the warrant requirement. In fact, the State does not argue that the photos of
the handgun found on McGraw’s phone were properly seized. Instead, it
assumes arguendo that the photos were improperly seized and argues instead
that the admission of the evidence during the probation revocation hearing was
nevertheless permissible.
[25] The State first argues that admission of the photos was permissible because it
claims the exclusionary rule in inapplicable in probation revocation hearings.
This is not entirely accurate. With respect to the exclusion of evidence obtained
in violation of a probationer’s constitutional rights,2 Indiana courts have long
2 On appeal, McGraw argues that the seizure of the photos from his mobile phone also violated Article 1, Section 11 of the Indiana Constitution. As noted by the State, however, McGraw made no argument regarding the Indiana Constitution before the trial court. Any argument under the Indiana Constitution is therefore waived. Williams v. State, 698 N.E.2d 848, 851–52 (Ind. Ct. App. 1998) (citing Hart v. State, 578 N.E.2d 336, 338 (Ind. 1991)), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1029 | February 21, 2020 Page 11 of 22 held that the exclusionary rule is not fully applicable in probation revocation
hearings. See Henderson v. State, 544 N.E.2d 507, 512–13 (Ind. 1989) (noting that
exclusionary rule is not fully applicable in probation revocation hearings);
Grubb v. State, 734 N.E.2d 589, 592–93 (Ind. Ct. App. 2000) (holding that
exclusionary rule did not bar introduction of statements obtained in violation of
probationer’s Fifth Amendment rights at probation revocation proceeding),
trans. denied; Dulin v. State, 169 Ind. App. 211, 219–20, 346 N.E.2d 746, 752
(1976) (holding that exclusionary rule is not fully applicable in probation
revocation hearings).3 Instead, in a probation revocation hearing, illegally
seized evidence will be excluded only if it was seized as part of a “continuing
plan of police harassment or in a particularly offensive manner.” Henderson, 544
N.E.2d at 513.
[26] While there was no evidence of a continuing plan of police harassment in this
case, we are particularly concerned about the execution of the search warrant
by Officer Nichols. The warrant authorizing the search of McGraw’s phone
clearly and explicitly states that warrant was “[g]ranted as to data from 1-25-18
to 1-27-18.” Ex. Vol., State’s Ex. 4. Instead of tailoring his search of the phone
to data from those dates, Officer Nichols simply ignored the scope of the search
warrant. This is especially concerning given the nature and quantity of
3 We acknowledge that, in Polk v. State, 739 N.E.2d 666, 669 (Ind. Ct. App. 2000), this court applied the exclusionary rule to a probation revocation hearing without addressing the question of whether the exclusionary rule should apply under the facts of that case. But we do not read Polk as holding that the exclusionary rule is fully applicable in probation revocation hearings; instead, the issue was simply not addressed.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1029 | February 21, 2020 Page 12 of 22 information contained on a modern mobile phone. See United States v. Wurie,
728 F.3d. 1, 8 (1st Cir. 2013) (noting that “[I]nformation [contained on a
modern cell phone] is, by and large, of a highly personal nature: photographs,
videos, written and audio messages (text, email, and voicemail), contacts,
calendar appointments, web search and browsing history, purchases, and
financial and medical records.”).
[27] If courts permit police to ignore the scope of a carefully worded and restrained
warrant authorizing the search of a modern mobile phone, we run the risk of
permitting general warrants—the very evil the Fourth Amendment was adopted
to prevent. See Payton v. New York, 445 U.S. 573, 583 (1980) (“[I]ndiscriminate
searches and seizures conducted under the authority of ‘general warrants’ were
the immediate evils that motivated the framing and adoption of the Fourth
Amendment.”). And if a police officer is allowed to claim that (s)he “did not
notice” the clear terms of the warrant, speeding offenses should be subject to the
defense that the driver “did not notice” the posted speed limit. We therefore
conclude that the careless execution of the carefully limited search warrant
issued here, without regard for the limits of the warrant, was done in a
“particularly offensive manner,” and that the exclusionary rule should apply.
The photos seized from McGraw’s phone therefore should have been excluded
to the extent they were evidence that McGraw had violated the terms of his
probation.
[28] The State, however, also argues that, at the time the photos were admitted into
evidence, the trial court had already made its decision to revoke McGraw’s
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1029 | February 21, 2020 Page 13 of 22 probation. As detailed above, at the revocation hearing, the State went through
the allegations contained in the notice of probation violation and admitted
evidence without objection supporting two of the allegations, including: (1) the
probation sign-in sheet, which supported the allegation that McGraw failed to
report to probation; and (2) the sentencing order in Cause No. CM-12574,
showing that McGraw had been convicted, while on probation, of Class B
misdemeanor possession of marijuana.
[29] At this point, McGraw’s counsel stated to the court: “As a preliminary matter,
if the evidence is admissible[,] I think we can skip straight to sentencing. He has
admitted that he’s been convicted of an offense under that count.” Tr. p. 12.
The trial court seemed to agree, stating, “The fact that he was charged with that
offense is sufficient for me and for this hearing. So if he admits to that
allegation, is that what you are saying?” Id. at 13. McGraw’s counsel replied,
“Yes, he was charged with that [the handgun charge] and convicted of
something else. [The handgun] charge was dismissed.” Id. McGraw stated,
“Yes ma’am, I was charged with [the handgun offense] but not convicted.” Id.
The trial court stated, “We have evidence that has been admitted to the Court
on each of the allegations. The Court at this time finds that there was a
violation of his probation. The Court at this time revokes that probation.” Id. at
13–14. All of this occurred before the photos were admitted into evidence.
[30] Because the trial court made the decision to revoke McGraw’s probation before
the photos were admitted into evidence, the photos could not have been the
basis for the court’s decision to revoke probation. Instead, the court’s decision
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1029 | February 21, 2020 Page 14 of 22 was based on the other evidence of other violations that was admitted at the
hearing without objection and that McGraw does not challenge on appeal, i.e.,
the fact that he admitted to committing another crime while on probation.
Accordingly, the admission of the photos was harmless error. See Decker v. State,
704 N.E.2d 1101, 1104 (Ind. Ct. App. 1999) (holding that admission of urine
screen results at probation revocation hearing was harmless where defendant
admitted to smoking marijuana); see also Figures v. State, 920 N.E.2d 267, 273
(Ind. Ct. App. 2010) (holding that trial court’s finding that defendant had
committed a new crime while on probation, although not supported by the
evidence, was harmless error because there was sufficient evidence to support
the other probation violations found by the trial court).
[31] Moreover, our supreme court has held that the fact that evidence was
suppressed and excluded does not preclude the trial court from considering the
suppressed and excluded evidence during sentencing. Walker v. State, 503
N.E.2d 883, 888 (Ind. 1987); see also Evid. R. 101(d)(2) (providing that the
Rules of Evidence, other than those with respect to privileges, “do not apply
in . . . [p]roceedings relating to . . . sentencing, probation, or parole[.]”); see also
United States v. Sanders, 743 F.3d 471, 472 (7th Cir. 2014) (noting that the
Seventh Circuit Court of Appeals has held that the exclusionary rule does not
apply at criminal sentencing and that “[e]very other court of appeals has come
to the same conclusion”) (citing United States v. Brimah, 214 F.3d 854, 858 (7th
Cir. 2000)).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1029 | February 21, 2020 Page 15 of 22 [32] Accordingly, although the seizure of the photos from McGraw’s phone was
improper and should have been excluded had they been offered into evidence
during the revocation portion of the hearing, they were not admitted until the
sentencing portion of the hearing, at which the exclusionary rule did not
prohibit their consideration by the trial court. Furthermore, the admission of the
photos was harmless error because there was evidence of other probation
violations, including McGraw’s conviction of a new crime.
II. Written Statement Requirement
[33] McGraw also claims that the trial court violated his due process rights by failing
to issue a written statement regarding the evidence the court relied on and its
reasons for revoking McGraw’s probation. See Washington, 758 N.E.2d at 1018
(holding that due process requires such a written statement of the trial court’s
reasons for revoking probation). The State does not deny that the trial court
failed to enter a formal written statement explaining its reasons for revoking
McGraw’s probation, and our review of the record reveals no such formal
statement. However, we have held that the requirement of a written statement
may be satisfied by placement of the transcript of the evidentiary hearing in the
record, if the transcript contains a clear statement of the trial court’s reasons for
revoking probation. Id.; Hubbard v. State, 683 N.E.2d 618, 620–21 (Ind. Ct. App.
1997)). The State argues that the inclusion of the transcript of the revocation
hearing in the record on appeal satisfies the requirement of a written statement.
[34] When the trial court ultimately made the decision to revoke McGraw’s
probation, it referenced the admitted evidence, stating, “[w]e have evidence that Court of Appeals of Indiana | Memorandum Decision 19A-CR-1029 | February 21, 2020 Page 16 of 22 has been admitted to the Court on each of the allegations. The Court at this
time finds that there was a violation of his probation. The Court at this time
revokes that probation.” Tr. pp. 13–14. From this, we think it reasonably clear
that the trial court revoked McGraw’s probation based on the evidence
admitted up to that point, which included the sentencing order in Cause No.
CM-12574. Thus, the record contains a written statement—the transcript—
setting forth the court’s reasons for revoking probation, i.e., McGraw
committing an additional criminal offense. This satisfies the due process
requirement of a written statement.
[35] McGraw also claims that the transcript is insufficient to show the trial court’s
reasons for revoking his probation because it reveals that the trial court’s
decision was based on an improper reason. i.e., merely being charged with (as
opposed to committing) an additional criminal offense. There is some validity
to this argument. Specifically, the trial court stated, “[t]he fact that [McGraw]
was charged with [the handgun] offense is sufficient for me and for this
hearing.” Tr. p. 13. This is an incorrect statement of the law. As we explained
in Jackson v. State, 6 N.E.3d 1040 (Ind. Ct. App. 2014):
[T]he 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.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1029 | February 21, 2020 Page 17 of 22 Id. at 1042 (citations omitted). Thus, to the extent the trial court concluded that
McGraw being charged with the handgun offense was sufficient to establish a
probation violation, it was in error.
[36] However, we cannot overlook the fact that McGraw’s counsel admitted that
McGraw had been convicted of a lesser offense in Cause No. F4-4001. “The
requirement that a probationer obey federal, state, and local laws is
automatically a condition of probation by operation of law.” Luke v. State, 51
N.E.3d 401, 421 (Ind. Ct. App. 2016) (citing Williams v. State, 695 N.E.2d 1017,
1019 (Ind. Ct. App. 1998)), trans. denied. Thus, “[a] criminal conviction is prima
facie evidence of a violation and will alone support a revocation of probation.”
Williams, 695 N.E.2d at 1019 (citing Gleason v. State, 634 N.E.2d 67, 68-69 (Ind.
Ct. App. 1994)).4 Moreover, as noted supra, the trial court based its decision to
revoke probation on all of the evidence admitted up to that point, which
included the sentencing order in Cause No. CM-12574, showing that McGraw
had indeed been convicted of a Class B misdemeanor in that case. Thus, even
though the trial court erred by stating that the criminal charge against McGraw
was sufficient to revoke his probation, there was evidence of other violations
sufficient to revoke McGraw’s probation. The trial court’s error was therefore
harmless.
4 The State also submitted evidence that McGraw failed to report to probation as required.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1029 | February 21, 2020 Page 18 of 22 III. Sentencing
[37] Lastly, McGraw claims that the trial court abused its discretion by ordering him
to serve a portion of his previously suspended sentence. Before addressing
McGraw’s specific arguments on this issue, we note that McGraw was
originally sentenced to twenty years as a result of a Class B felony conviction.
The sentencing court imposed a sentence of six years executed in community
corrections and fourteen years suspended, with only one year of this suspended
sentence on formal, reporting probation.5 After he violated the terms of his
placement in community corrections several times, the trial court ordered
McGraw to serve the remainder of the six-year executed portion of his sentence
in DOC. McGraw was released from DOC custody in November 2017. At this
point, he claims, he began to serve the “remaining one year of his sentence on
supervised probation.” Appellant’s Br. at 9. This is not accurate. Instead, when
McGraw was released from DOC custody in November 2017, the entire fourteen-
year suspended portion of his sentence remained, but only one year was to be
served on supervised probation. And when the trial court revoked McGraw’s
probation, it did not order him to serve the entire previously suspended
fourteen-year remainder of his sentence. It ordered him to serve seven years
5 See Jennings v. State, 982 N.E.2d 1003, 1008 (Ind. 2013) (noting that “‘[a] suspended sentence, in effect, is a form of probation” and that “[a] suspended sentence is ‘[a] sentence postponed so that the convicted criminal is not required to serve time unless he or she commits another crime or violates some other court-imposed condition.’” (quoting Black’s Law Dictionary 1322, 1486 (9th Ed. 2009); Gardner v. State, 678 N.E.2d 398, 400 (Ind. Ct. App. 1997) (noting that “‘[p]robation is merely the condition resulting from a suspended sentence.’”) (quoting State v. Lowdermilk, 245 Ind. 93, 99, 195 N.E.2d 476, 479 (1964)).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1029 | February 21, 2020 Page 19 of 22 executed in DOC, four years on home detention, and three years on probation.
It is with this in mind that we address McGraw’s sentencing claims.
[38] The sentencing of a defendant following a probation violation is governed by
statute. Indiana Code section 35-38-2-3(h) provides that upon finding a
violation of probation, a trial court may: “(1) [c]ontinue the person on
probation, with or without modifying or enlarging the conditions[;] (2) [e]xtend
the person’s probationary period for not more than one (1) year beyond the
original probationary period[; or] (3) [o]rder execution of all or part of the
sentence that was suspended at the time of initial sentencing.” The fact that the
trial court has options under section 35-38-2-3(h) implies it has discretion in
deciding which option is appropriate under the circumstances of each case.
Johnson v. State, 692 N.E.2d 485, 488 (Ind. Ct. App. 1998). Accordingly, we
review a trial court’s sentencing decision following a probation revocation for
an abuse of discretion. Sanders v. State, 825 N.E.2d 952, 957 (Ind. Ct. App.
2005), trans. denied; see also Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007)
(“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.”).
[39] McGraw claims that the trial court abused its discretion because it focused too
much on the “deal” McGraw got with his original sentence and less on the facts
and circumstances of the violations that led to the revocation. We disagree. To
be sure, the trial court did seem to be surprised at the relative lenience of
McGraw’s original sentence. See Tr. p. 34 (“[T]he thing that strikes me the most
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1029 | February 21, 2020 Page 20 of 22 is that you got this huge break of a fourteen (14) year sentence that was reduced
to probation basically.”); id. at 35 (“God gave you a huge break with that
sentence.”). But we do not read the trial court’s statements as disagreement
with the original sentence as much as dismay at the fact that McGraw did not
take advantage of the break he was given by abiding by the terms of his
alternative placement. See id. (“So yea[h], you were on the wrong road but you
would have thought that that break would send you back on the right track.
What happened?”). We therefore reject McGraw’s claims that the trial court
abused its discretion by punishing him because of its disagreement with the
relative lenience of McGraw’s original sentence.
[40] Nor can we say that the trial court abused its considerable discretion by
ordering McGraw to serve seven years of the remaining fourteen years of his
sentence in DOC, four years in community corrections, and three years on
probation. McGraw was originally given a relatively lenient sentence in that he
was required to serve only six years executed in community corrections, with
the remaining fourteen years suspended. Instead of taking advantage of the
sentencing court’s leniency, McGraw repeatedly violated the terms of his
community corrections, resulting in his placement therein being revoked and
being ordered to serve the remainder of the executed portion of his sentence in
DOC. When he was released from DOC custody, McGraw only had to serve
one year of the remaining fourteen years of his suspended sentence on reporting
probation. Again, instead of taking advantage of this situation, McGraw
violated the terms of his probation by being convicted of additional crimes.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1029 | February 21, 2020 Page 21 of 22 Under these facts and circumstances, the trial court’s decision to order McGraw
to serve seven years in DOC, four years in community corrections, and three
years on probation was not an abuse of discretion.
Conclusion [41] The police failed to follow the clear and unambiguous terms of the warrant
authorizing the search of McGraw’s mobile phone. Even though the
exclusionary rule is not fully applicable in probation revocation proceedings, we
have no hesitation in concluding that, had these photos been offered as State’s
evidence at the hearing, they should have been excluded. But the photos were
only admitted at the sentencing portion of the hearing. And trial courts are
permitted to consider otherwise inadmissible evidence at sentencing. Even if the
trial court had erred in admitting the photos, any error would be harmless and
would not require us to reverse the court’s decision to revoke McGraw’s
probation because there was evidence of other probation violations, including
McGraw being convicted of a new criminal offense. Also, the transcript of the
trial court’s reasons for revoking McGraw’s probation is sufficient to satisfy the
due-process requirement of a written statement. Lastly, the trial court’s decision
to order McGraw to serve seven years in DOC, four years in community
corrections, and three years on probation was not an abuse of discretion.
[42] Affirmed.
Kirsch, J., and Bailey, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1029 | February 21, 2020 Page 22 of 22