Rex A. Shannon v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 14, 2015
• Docket: 48A02-1409-CR-653
• Status: Published

Opinion

MEMORANDUM DECISION Apr 14 2015, 9:38 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 Douglas R. Long Gregory F. Zoeller Anderson, Indiana Attorney General of Indiana Christina D. Pace Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Rex A. Shannon, April 14, 2015

Appellant-Defendant, Court of Appeals Cause No. 48A02-1409-CR-653 v. Appeal from the Madison Circuit Court. State of Indiana, The Honorable Dennis Carroll, Judge. Appellee-Plaintiff. Cause No. 48D01-1106-FB-1043

Riley, Judge.

Court of Appeals of Indiana | Memorandum Opinion | 48A02-1409-CR-653 | April 14, 2015 Page 1 of 11 STATEMENT OF THE CASE

[1] Appellant-Defendant, Rex A. Shannon (Shannon), appeals the trial court’s

revocation of his probation.

[2] We affirm.

ISSUES

[3] Shannon raises three issue on appeal which we consolidate and restate as the

following two issues:

(1) Whether Shannon received ineffective assistance of trial counsel; and

(2) Whether the trial court abused its discretion when it revoked his probation

and imposed the balance of his previously-suspended sentence.

FACTS AND PROCEDURAL HISTORY

[4] On June 7, 2011, the State filed an Information charging Shannon with one

Count of unlawful possession of a firearm by a serious violent felon, a Class B

felony; one Count of unlawful possession of firearm by domestic batterer, a

Class A misdemeanor; and one Count of maintaining a common nuisance, a

Class D felony. On December 19, 2011, Shannon entered into a plea

agreement with the State in which he pled guilty to unlawful possession of a

firearm by a serious violent felon, a Class B felony. On February 6, 2012, the

trial court accepted the plea agreement and sentenced Shannon to thirteen years

at the Department of Correction (DOC), with seven years suspended to

Court of Appeals of Indiana | Memorandum Opinion | 48A02-1409-CR-653 | April 14, 2015 Page 2 of 11 probation. The remaining Counts were dismissed as part of the plea agreement.

Shannon was released to probation on March 31, 2014.

[5] On July 18, 2014, Madison County Deputy Sherriff Lance Blossom (Deputy

Blossom) stopped Shannon, who was travelling at sixty-seven miles per hour in

a fifty-five mile per hour speed zone. After initiating the traffic stop, Deputy

Blossom approached Shannon’s vehicle and he encountered the smell of

marijuana emanating from inside. Deputy Blossom immediately called for

assistance. When back-up arrived, Deputy Blossom again made contact with

Shannon and explained what he had initially observed. To dispel Deputy

Blossom’s suspicion, Shannon stated that a search would not yield anything,

and he consented to his vehicle being searched. In the center console, Deputy

Blossom found an empty cigarette pack containing a yellow pill which was later

confirmed to be hydrocodone. After reading Shannon his Miranda rights,

Shannon informed Deputy Blossom that he had received the hydrocodone pill

from a friend earlier that day and he did not have a prescription for it.

[6] On July 22, 2014, the State filed an Information charging Shannon with

possession of a controlled substance, a Level 6 felony, Ind. Code § 35-48-4-7.

The next day, Shannon’s probation officer, Carl Chambers (Chambers), filed a

notice of violation of probation alleging that Shannon: committed a new

offense, failed to obtain a substance abuse evaluation, failed to pay his

probation and administrative fees, and failed to maintain full-time work or

verify his employment. A bifurcated evidentiary hearing was conducted on

September 2 and 15, 2014, to consider whether or not to revoke Shannon’s

Court of Appeals of Indiana | Memorandum Opinion | 48A02-1409-CR-653 | April 14, 2015 Page 3 of 11 probation. At the conclusion of the hearing, the trial court accepted Shannon’s

admission that he had not obtained a substance abuse evaluation and found

that the State had met its burden in proving that Shannon had not worked full

time as required, failed to authenticate his employment information, and

committed a new crime. As a result, the trial court ordered Shannon to serve

the balance of his seven-year term in the DOC.

[7] Shannon now appeals. Additional information will be provided as necessary.

DISCUSSION AND DECISION

I. Ineffective Assistance of Counsel

[8] Shannon first urges us to find that his trial counsel was ineffective for failing to

object or to suppress Deputy Blossom’s testimony concerning the search of his

vehicle.

[9] We review claims of ineffective assistance of counsel under the two prongs set

forth in Strickland v. Washington, 466 U.S. 668 (1984). Bieghler v. State, 690

N.E.2d 188, 192 (Ind. 1997), cert. denied, 525 U.S. 1021 (1998). The same

standard applies to claims of ineffective assistance of trial or appellate counsel.

Id. To prevail on a claim of ineffective assistance of counsel, the petitioner

must show that his counsel’s performance fell below an objective standard of

reasonableness as determined by prevailing norms, and that the lack of

reasonable representation prejudiced him. Randolph v. State, 802 N.E.2d 1008,

1013 (Ind. Ct. App. 2004), trans. denied. To satisfy the first prong, the petitioner

must show that counsel’s performance was deficient in that counsel’s

Court of Appeals of Indiana | Memorandum Opinion | 48A02-1409-CR-653 | April 14, 2015 Page 4 of 11 representation fell below an objective standard of reasonableness and that

counsel committed errors so serious that petitioner did not have the “counsel”

guaranteed by the Sixth Amendment. Reed v. State, 856 N.E.2d 1189, 1195

(Ind. 2006). To show prejudice, the petitioner must show a reasonable

probability that, but for counsel’s errors, the result of the proceeding would

have been different. Id. A reasonable probability is a probability sufficient to

undermine confidence in the outcome. Pruitt v. State, 903 N.E.2d 899, 906 (Ind.

2009).

[10] When considering a claim of ineffective assistance of counsel, a “strong

presumption arises that counsel rendered adequate assistance and made all

significant decisions in the exercise of reasonable professional judgment.”

Morgan v. State, 755 N.E.2d 1070, 1072 (Ind. 2001). “[C]ounsel’s performance

is presumed effective, and a defendant must offer strong and convincing

evidence to overcome this presumption.” Williams v. State, 771 N.E.2d 70, 73

(Ind. 2002). Evidence of isolated poor strategy, inexperience, or bad tactics will

not support a claim of ineffective assistance of counsel. Pryor v. State, 973

N.E.2d 629, 631-32 (Ind. Ct. App. 2012). In addition, when an ineffective

assistance of counsel claim is based upon a failure to object, the defendant must

first prove that an objection would have been sustained by the trial court had

defense counsel objected at trial and, second, that he was prejudiced by the

failure. Mays v. State, 719 N.E.2d 1263, 1265-66 (Ind. Ct. App. 1999), trans.

denied.

Court of Appeals of Indiana | Memorandum Opinion | 48A02-1409-CR-653 | April 14, 2015 Page 5 of 11 [11] Shannon argues that his trial counsel was ineffective for failing to object to

Deputy Blossom’s testimony regarding the fruits of the search. Shannon

maintains that the search violated Article I, Section 11 of the Indiana

Constitution and the Fourth Amendment to the United States Constitution. In

countering Shannon’s arguments, the State maintains that the trial court would

not have permitted trial counsel’s objection since Shannon consented to the

search and that the search fell within the automobile exception. We agree.

[12] The Fourth Amendment to the United States Constitution, applicable to the

States through the Fourteenth Amendment, provides, “The right of the people

to be secure in their persons, houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated.” U.S. Const. amend IV. The

Indiana Constitution includes a nearly-identical provision. Ind. Const. art. I, §

11; Mitchell v. State, 745 N.E.2d 775, 785–86 (Ind. 2001). “A traffic stop of an

automobile and temporary detention of its occupants constitutes a ‘seizure’

within the meaning of the Fourth Amendment.” Bush v. State, 925 N.E.2d 787,

789–90 (Ind. Ct. App. 2010). A search falls within the automobile exception

when a vehicle is readily mobile and there is probable cause to believe it

contains contraband or evidence of a crime. Meister v. State, 933 N.E.2d 875,

878-79 (Ind.2010) (citing Maryland v. Dyson, 527 U.S. 465, 467 (1999)). When

there is probable cause, police have the authority to search a vehicle and all

containers located therein. See Krise v. State, 746 N.E.2d 957, 962 (Ind. 2001).

[13] We note that Shannon does not argue that Deputy Blossom lacked probable

cause to search the vehicle. Rather, he contends that the warrantless search was

Court of Appeals of Indiana | Memorandum Opinion | 48A02-1409-CR-653 | April 14, 2015 Page 6 of 11 improper because the odor of marijuana did not come from the cigarette box,

but the car. We have recognized that the odor of marijuana on a person’s

breath and emanating from inside a vehicle may give rise to probable cause that

a person possesses marijuana. Edmond v. State, 951 N.E.2d 585, 590–91 (Ind.

Ct. App. 2011). As noted above, when probable cause exists, police have the

authority to search a vehicle and all containers located therein. See Krise, 746

N.E.2d at 962.

[14] When Deputy Blossom stopped Shannon’s vehicle he noticed the smell of burnt

marijuana originating from Shannon’s vehicle. Deputy Blossom testified that

he was specifically looking for marijuana or “something of that nature” in

Shannon’s vehicle. (Transcript p. 50). Following Deputy Blossom’s request to

search the vehicle, and supported by the fact that there was probable cause to

search the vehicle, Deputy Blossom found an empty cigarette pack in the center

console containing a hydrocodone pill. At Shannon’s evidentiary hearing,

Deputy Shannon repeated Shannon’s statements that Shannon had acquired the

hydrocodone pill from a friend and had no prescription for it. Based on the

foregoing, we conclude that the warrantless search was valid and that it did not

violate Shannon’s Fourth Amendment rights.

[15] Finding that the search was valid, we cannot say there is a reasonable

probability that the objection to Deputy Blossom’s testimony would have been

sustained if made. Nor is there a reasonable probability that a motion to

suppress would have been granted on this ground. Accordingly, Shannon has

not met his burden of demonstrating that counsel’s performance on this issue

Court of Appeals of Indiana | Memorandum Opinion | 48A02-1409-CR-653 | April 14, 2015 Page 7 of 11 fell below an objective standard of reasonableness. But even assuming for the

sake of argument that counsel’s failure to object or move to suppress Deputy

Blossom’s testimony regarding a search, Shannon has still failed to show that,

but for counsel’s error, the outcome of the trial would have been different. To

be precise, Shannon has failed to show that, but for the testimony confirming

that he committed a new offense—possession of a controlled substance—the

trial court would not have revoked his probation. In the instant case, Shannon

made an admission that he had failed to submit to a substance evaluation and

that he also had failed to pay his probation or administration fees. This court

has held that a single violation of the terms of probation is sufficient to revoke

probation. Snowberger v. State, 938 N.E.2d 294, 296 (Ind. Ct. App. 2010).

Therefore, we find no ineffective assistance of counsel.

II. Probation Revocation

[16] Lastly, Shannon argues that the trial court abused its discretion by ordering him

to serve his previously suspended sentence. It is well established that a person’s

probation may be revoked if the person has violated a condition of probation

during the probationary period. I.C. § 35-38-2-3(a)(1). We view probation as a

matter of grace left to the trial court’s discretion, not a right to which a

defendant is entitled. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007).

Therefore, a probationer faced with a petition to revoke his probation is not

entitled to the full panoply of rights he enjoyed before his conviction. Cooper v.

State, 900 N.E.2d 64, 66 (Ind. Ct. App. 2009). For instance, the State only

Court of Appeals of Indiana | Memorandum Opinion | 48A02-1409-CR-653 | April 14, 2015 Page 8 of 11 needs to prove an alleged violation of probation by a preponderance of the

evidence. Id.

[17] Probation revocation is a two-step process. Cox v. State, 850 N.E.2d 485, 488

(Ind. Ct. App. 2006). First, the court must make a factual determination

concerning whether a violation of a condition of probation has occurred. Id.

Second, if the trial court finds a violation, the trial court must determine

whether the violation warrants revocation of the probation. Id. When a

probationer admits to the violation, the court can proceed to the second step of

the inquiry and determine whether the violation warrants revocation. Id. At

this point, the probationer must be given the opportunity to present evidence

that explains and mitigates his violation. Id.

[18] Shannon does not dispute that he failed to obtain a substance abuse evaluation,

nor that his administration and probation fees were not current before the start

of his evidentiary hearing. Shannon heavily contests the finding that the he had

not maintained full-time employment or substantiated his employment details

with his probation officer. In addition, Shannon maintains that he did not

commit the new crime of possessing a controlled substance. At the probation

revocation hearing, Chambers stated that Shannon was required to work 35

hours per week but had only worked “20 to 22 hours” over a “three week

stretch.” (Tr. p. 40). Most importantly, four months after being released from

prison, Shannon committed a new offense. At Shannon’s evidentiary hearing,

Deputy Blossom reiterated Shannon’s statement that he received the

hydrocodone pill from a friend, and that he had no prescription. Shannon,

Court of Appeals of Indiana | Memorandum Opinion | 48A02-1409-CR-653 | April 14, 2015 Page 9 of 11 however, recanted his prior statements and instead called his girlfriend to testify

that the hydrocodone pill was hers. This court has held that a probation

hearing is civil in nature, and the State need only prove the alleged violations by

a preponderance of the evidence. Cox, 706 N.E.2d at 551. As a fact-finder, the

trial court had to weigh and determine whether to believe Deputy Blossom or

Shannon. In this case, the trial court gave weight to Deputy Blossom’s

testimony.

[19] Lastly, we note that a single violation of the terms of probation is sufficient to

revoke probation. Snowberger, 938 N.E.2d at 296. Shannon violated not just

one, but several terms of his probation. As stated in the foregoing discussion,

Shannon admitted that he had failed to submit to a substance abuse evaluation

or make a good faith effort to pay his probation or administration fees. In

addition, by a preponderance of the evidence, the State successfully proved that

Shannon had failed to keep his probation officer informed about his

employment details, nor had he worked full time as ordered. More importantly

is that Shannon committed a new offense while still on probation.

[20] Based on the foregoing, it is apparent that Shannon chose not to follow the

conditions of his probation. In light of the foregoing, we decline to disturb the

trial court’s decision to revoke Shannon’s probation as he has failed to show

that the trial court abused its discretion in ordering him to serve the entire term

of the originally-suspended sentence.

CONCLUSION

Court of Appeals of Indiana | Memorandum Opinion | 48A02-1409-CR-653 | April 14, 2015 Page 10 of 11 [21] Based on the record before us, we conclude that the trial court did not abuse its

discretion by ordering Shannon to serve his previously suspended sentence in

the DOC.

[22] Affirmed.

[23] Vaidik, C. J. and Baker, J. concur

Court of Appeals of Indiana | Memorandum Opinion | 48A02-1409-CR-653 | April 14, 2015 Page 11 of 11