MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Feb 09 2015, 5:57 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 ATTORNEY FOR APPELLEE Megan B. Quirk Gregory F. Zoeller Muncie, Indiana Attorney General of Indiana Graham T. Youngs, Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Neil A. Clements, February 9, 2015
Appellant-Defendant, Court of Appeals Case No. 18A04-1406-CR-268 v. Appeal from the Delaware Circuit Court
State of Indiana, The Honorable Marianne L. Vorhees, Judge Appellee-Plaintiff Cause No. 18C01-1307-FC-45
Mathias, Judge.
[1] On August 19, 2013, Neil Clements (“Clements”) pleaded guilty to Class C
felony nonsupport of a dependent. The trial court sentenced Clements to six
years, with two years executed in Delaware County Community Corrections
and four years suspended to probation. After Clements failed to report to
Court of Appeals of Indiana | Memorandum Decision 18A04-1406-CR-268 | February 9, 2015 Page 1 of 7 community corrections pending placement on electronic home detention and
failed to have a landline telephone installed at his home, the trial court revoked
his direct commitment to community corrections and ordered him to serve his
previously suspended sentence.
[2] Clements now appeals the trial court’s revocation of his direct commitment,
arguing that the State failed to provide sufficient evidence to support the
revocation.
[3] We affirm.
Facts and Procedural History [4] On April 10, 2003, Clements was ordered to pay $53 per week in child support.
During the next seven years, Clements paid a total of only $316 in child support
and ceased making payments altogether in May 2010. By January 21, 2013,
Clements owed $27,138 in past-due child support.
[5] On July 1, 2013, the State charged Clements with Class C felony nonsupport of
a dependent child. On August 19, 2013, Clements agreed to plead guilty to the
charge and to make weekly payments of $103 for his current and past-due child
support obligation. Pursuant to the agreement, the court sentenced Clements to
two years executed in Delaware County Community Corrections and four
years of supervised probation. The terms of Clements’s direct commitment
included requirements that he “report [to community corrections] for Daily
Reporting” and “obtain[] a landline telephone.” Appellant’s App. p. 45.
Court of Appeals of Indiana | Memorandum Decision 18A04-1406-CR-268 | February 9, 2015 Page 2 of 7 [6] Approximately three months later, on November 8, 2013, the State filed a
petition to revoke Clements’s executed sentence, alleging that Clements failed
to report for daily reporting and failed to obtain a landline telephone. The trial
court held a fact-finding hearing on May 14, 2014. At the hearing, Jennifer
Davis (“Davis”), a home detention supervisor with Delaware County
Community Corrections, testified that Clements had not reported to
community corrections since October 30, 2013. Davis also testified that
Clements never obtained a landline telephone and was never placed on
electronic home monitoring because of his failure to pay the associated fees.
During his testimony, Clements admitted both allegations. He also testified
that, because he had never been paid for work he had performed for various
employers, he had been unable “get the money up for home detention” and that
was why he did not have a landline installed and failed to report to community
corrections. Tr. p. 6. Following the hearing, the trial court determined that
Clements had violated the terms of his direct commitment by failing to report
and failing to obtain a landline telephone.
[7] The parties agreed to hold a dispositional hearing immediately following the
fact-finding hearing. At the hearing, the State presented evidence that Clements
had not made any child support payments from April 13, 2013, to May 13,
2014. Clements testified that he failed pay any child support because “there was
no income coming in whatsoever.” Tr. p. 13. At the conclusion of the
dispositional hearing, the trial court found that Clements has a criminal history,
including “past cases where he was given a direct commitment, did not report,
Court of Appeals of Indiana | Memorandum Decision 18A04-1406-CR-268 | February 9, 2015 Page 3 of 7 did not get signed up and put on the direct commitment, electronic home
detention.” Tr. p. 17. The court also found that Clements is “able-bodied [and]
capable of earning income.” Id. The court ordered Clements to serve four
years of his previously suspended sentence in the Department of Correction and
the remaining two years on probation.
[8] Clements now appeals.
Discussion and Decision [9] Clements argues the trial court had insufficient evidence to revoke his
commitment to community corrections. Specifically, he argues that the State
failed to prove that he “recklessly, knowingly, or intentionally failed to pay”
child support as ordered. Appellant’s Br. at 10.
[10] A reviewing court treats a petition to revoke placement in a community
corrections program the same as a petition to revoke probation. Bass v. State,
91A N.E.2d 482, 488 (Ind. Ct. App. 2012). Probation is a matter of grace left to
a trial court’s discretion, not a right to which a criminal defendant is entitled.
Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013). Once a court has exercised its
grace by ordering probation rather than incarceration, the judge has
considerable leeway in deciding how to proceed. Prewitt v. State, 878 N.E.2d
184, 188 (Ind. 2007). Accordingly, a court’s probation decision is subject to
review for abuse of discretion. Smith v. State, 963 N.E.2d 1110, 1112 (Ind.
Court of Appeals of Indiana | Memorandum Decision 18A04-1406-CR-268 | February 9, 2015 Page 4 of 7 2012). An abuse of discretion occurs where the decision is clearly against the
logic and effects of the facts and circumstances before the court. Id.
[11] 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.
[12] It is well settled that violation of a single condition of probation is sufficient to
revoke probation. See Baxter v. State, 774 N.E .2d 1037, 1044 (Ind. Ct. App.
2002), trans. denied. Davis testified that Clements had violated the terms of his
direct commitment by failing to report and failing to install a landline in his
residence. Clements himself testified that he failed to meet both of these
requirements. This evidence was sufficient to show that Clements violated the
terms of his direct commitment. Clements argues that the trial court had
Free access — add to your briefcase to read the full text and ask questions with AI
MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Feb 09 2015, 5:57 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 ATTORNEY FOR APPELLEE Megan B. Quirk Gregory F. Zoeller Muncie, Indiana Attorney General of Indiana Graham T. Youngs, Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Neil A. Clements, February 9, 2015
Appellant-Defendant, Court of Appeals Case No. 18A04-1406-CR-268 v. Appeal from the Delaware Circuit Court
State of Indiana, The Honorable Marianne L. Vorhees, Judge Appellee-Plaintiff Cause No. 18C01-1307-FC-45
Mathias, Judge.
[1] On August 19, 2013, Neil Clements (“Clements”) pleaded guilty to Class C
felony nonsupport of a dependent. The trial court sentenced Clements to six
years, with two years executed in Delaware County Community Corrections
and four years suspended to probation. After Clements failed to report to
Court of Appeals of Indiana | Memorandum Decision 18A04-1406-CR-268 | February 9, 2015 Page 1 of 7 community corrections pending placement on electronic home detention and
failed to have a landline telephone installed at his home, the trial court revoked
his direct commitment to community corrections and ordered him to serve his
previously suspended sentence.
[2] Clements now appeals the trial court’s revocation of his direct commitment,
arguing that the State failed to provide sufficient evidence to support the
revocation.
[3] We affirm.
Facts and Procedural History [4] On April 10, 2003, Clements was ordered to pay $53 per week in child support.
During the next seven years, Clements paid a total of only $316 in child support
and ceased making payments altogether in May 2010. By January 21, 2013,
Clements owed $27,138 in past-due child support.
[5] On July 1, 2013, the State charged Clements with Class C felony nonsupport of
a dependent child. On August 19, 2013, Clements agreed to plead guilty to the
charge and to make weekly payments of $103 for his current and past-due child
support obligation. Pursuant to the agreement, the court sentenced Clements to
two years executed in Delaware County Community Corrections and four
years of supervised probation. The terms of Clements’s direct commitment
included requirements that he “report [to community corrections] for Daily
Reporting” and “obtain[] a landline telephone.” Appellant’s App. p. 45.
Court of Appeals of Indiana | Memorandum Decision 18A04-1406-CR-268 | February 9, 2015 Page 2 of 7 [6] Approximately three months later, on November 8, 2013, the State filed a
petition to revoke Clements’s executed sentence, alleging that Clements failed
to report for daily reporting and failed to obtain a landline telephone. The trial
court held a fact-finding hearing on May 14, 2014. At the hearing, Jennifer
Davis (“Davis”), a home detention supervisor with Delaware County
Community Corrections, testified that Clements had not reported to
community corrections since October 30, 2013. Davis also testified that
Clements never obtained a landline telephone and was never placed on
electronic home monitoring because of his failure to pay the associated fees.
During his testimony, Clements admitted both allegations. He also testified
that, because he had never been paid for work he had performed for various
employers, he had been unable “get the money up for home detention” and that
was why he did not have a landline installed and failed to report to community
corrections. Tr. p. 6. Following the hearing, the trial court determined that
Clements had violated the terms of his direct commitment by failing to report
and failing to obtain a landline telephone.
[7] The parties agreed to hold a dispositional hearing immediately following the
fact-finding hearing. At the hearing, the State presented evidence that Clements
had not made any child support payments from April 13, 2013, to May 13,
2014. Clements testified that he failed pay any child support because “there was
no income coming in whatsoever.” Tr. p. 13. At the conclusion of the
dispositional hearing, the trial court found that Clements has a criminal history,
including “past cases where he was given a direct commitment, did not report,
Court of Appeals of Indiana | Memorandum Decision 18A04-1406-CR-268 | February 9, 2015 Page 3 of 7 did not get signed up and put on the direct commitment, electronic home
detention.” Tr. p. 17. The court also found that Clements is “able-bodied [and]
capable of earning income.” Id. The court ordered Clements to serve four
years of his previously suspended sentence in the Department of Correction and
the remaining two years on probation.
[8] Clements now appeals.
Discussion and Decision [9] Clements argues the trial court had insufficient evidence to revoke his
commitment to community corrections. Specifically, he argues that the State
failed to prove that he “recklessly, knowingly, or intentionally failed to pay”
child support as ordered. Appellant’s Br. at 10.
[10] A reviewing court treats a petition to revoke placement in a community
corrections program the same as a petition to revoke probation. Bass v. State,
91A N.E.2d 482, 488 (Ind. Ct. App. 2012). Probation is a matter of grace left to
a trial court’s discretion, not a right to which a criminal defendant is entitled.
Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013). Once a court has exercised its
grace by ordering probation rather than incarceration, the judge has
considerable leeway in deciding how to proceed. Prewitt v. State, 878 N.E.2d
184, 188 (Ind. 2007). Accordingly, a court’s probation decision is subject to
review for abuse of discretion. Smith v. State, 963 N.E.2d 1110, 1112 (Ind.
Court of Appeals of Indiana | Memorandum Decision 18A04-1406-CR-268 | February 9, 2015 Page 4 of 7 2012). An abuse of discretion occurs where the decision is clearly against the
logic and effects of the facts and circumstances before the court. Id.
[11] 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.
[12] It is well settled that violation of a single condition of probation is sufficient to
revoke probation. See Baxter v. State, 774 N.E .2d 1037, 1044 (Ind. Ct. App.
2002), trans. denied. Davis testified that Clements had violated the terms of his
direct commitment by failing to report and failing to install a landline in his
residence. Clements himself testified that he failed to meet both of these
requirements. This evidence was sufficient to show that Clements violated the
terms of his direct commitment. Clements argues that the trial court had
insufficient evidence that his failure to pay child support was reckless, knowing,
or intentional. However, this argument is beside the point because evidence as
to the reason for his failure to pay child support did not serve as a basis for the
trial court’s revocation of Clements’s commitment to community corrections.
Indeed, the trial court did not consider evidence of Clements’s most recent
failure to pay child support until the dispositional hearing, after it had already
revoked Clements’s direct commitment.
Court of Appeals of Indiana | Memorandum Decision 18A04-1406-CR-268 | February 9, 2015 Page 5 of 7 [13] Clements also argues that his due process rights were violated because he was
not allowed “an opportunity to present facts and explanation regarding his
alleged resources, employment circumstances, inability to pay, and efforts to
make the required payments,” noting that his dispositional hearing was held
immediately after his revocation hearing. Appellant’s Br. at 16.
[14] The Fourteenth Amendment’s Due Process Clause applies to probation
revocation proceedings. Bass v. State, 974 N.E.2d at 486. However, a probation
revocation proceeding is in the nature of a civil action and is not to be equated
with an adversarial criminal proceeding. Mathews v. State, 907 N.E.2d 1079,
1081 (Ind. Ct. App. 2009). Therefore, a probationer is entitled to some, but not
all, of the rights afforded to a criminal defendant. Id. “[T]he due process
requirements expressed by this court for probation revocations are also required
when the trial court revokes a defendant’s placement in a community
corrections program.” Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999).
[15] Here, Clements was entitled to (a) a written notice of the claimed violations, (b)
disclosure of the evidence against him, (c) the opportunity to be heard in person
and present witnesses and evidence, (d) the right to confront and cross-examine
witnesses, (e) a neutral and detached hearing body, and (f) a written statement
by the factfinder regarding the evidence relied upon and reason for revocation.
Mathews, 907 N.E.2d at 1081. We see no due process violation in this case.
Clements’s attorney agreed to hold the dispositional hearing immediately
following the revocation hearing, and Clements was permitted to, and did,
testify on his own behalf at the dispositional hearing.
Court of Appeals of Indiana | Memorandum Decision 18A04-1406-CR-268 | February 9, 2015 Page 6 of 7 [16] For all of these reasons, we affirm the trial court’s revocation of Clements’s
direct commitment.
[17] Affirmed.
Najam, J., and Bradford, J. concur.
Court of Appeals of Indiana | Memorandum Decision 18A04-1406-CR-268 | February 9, 2015 Page 7 of 7