Terrance Smoots, Jr. v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 31, 2016
• Docket: 48A02-1506-CR-746
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Mar 31 2016, 8:53 am this Memorandum Decision shall not be regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court

the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Richard Walker Gregory F. Zoeller Anderson, Indiana Attorney General of Indiana

Paula J. Beller Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Terrance Smoots, Jr., March 31, 2016 Appellant-Defendant, Court of Appeals Case No. 48A02-1506-CR-746 v. Appeal from the Madison Circuit Court State of Indiana, The Honorable Mark Dudley, Appellee-Plaintiff. Judge Trial Court Cause No. 48C06-1112-FB-2280

Najam, Judge.

Court of Appeals of Indiana | Memorandum Decision 48A02-1506-CR-746 | March 31, 2016 Page 1 of 5 Statement of the Case [1] Terrance Smoots, Jr. appeals the trial court’s revocation of his probation.

Smoots raises a single issue for our review, namely, whether the trial court

denied him his due process rights under the Fourteenth Amendment. We

affirm.

Facts and Procedural History [2] On July 30, 2012, Smoots pleaded guilty to robbery, as a Class C felony.

Pursuant to a plea agreement, the trial court sentenced Smoots as follows: five

years at the Department of Correction (“DOC”); one year in community

corrections; and two years on probation. On December 16, 2014, after having

completed the executed portion of his sentence, Smoots began his one-year

work release sentence at the Madison County Work Release Center (“Work

Release Center”). Within two months of being on work release, Smoots had

repeated incidents of violating work release rules. On February 13, 2015, the

State filed a petition to terminate Smoots from Work Release due to Smoots

leaving work without authorization, and the trial court issued a warrant for his

arrest. That same day, Smoots reported to officers at the Work Release Center

that he had vomited blood, and an officer transported Smoots to a local

hospital. Smoots did not return to the Work Release Center upon his discharge

from the hospital.

[3] On May 7, 2015, Officers Dustin Armstrong and Joe Garrett of the Anderson

City Police Department questioned Smoots during a traffic stop and noticed an

Court of Appeals of Indiana | Memorandum Decision 48A02-1506-CR-746 | March 31, 2016 Page 2 of 5 odor of marijuana coming from Smoots’ vehicle. Smoots gave the officers a

fake name, and, when the officers learned of Smoots’ true identity, Smoots fled.

Officers eventually found Smoots and took him into custody without further

incident.

[4] On May 13, the State filed a second petition to terminate Smoots from the

Work Release program based on Smoots’ failure to do the following: return to

lawful detention despite notice provided on February 13 and 18; failure to

return to lawful detention, as a Level 6 felony; escape, as a Level 5 felony; false

informing, as a Class A misdemeanor; and possession of marijuana, as a Class

A misdemeanor.

[5] Following a hearing on the State’s petition to terminate Smoots from Work

Release, the trial court found that Smoots had failed to successfully complete

his work release and had failed to return to lawful detention. The trial court

sentenced Smoots to three years executed in the DOC with 126 days credit

time. This appeal ensued.

Discussion and Decision [6] Smoots contends that he was denied due process when the trial court denied

him the ability to present mitigating evidence prior to the revocation of his

probation. While distinguished from criminal trials, probation revocation

hearings are regulated by the Due Process Clause of the Fourteenth

Amendment. U.S. Const. amend. XIV; Medicus v. State, 664 N.E.2d 1163, 1164

(Ind. 1996). The minimum requirements of due process provided to a

Court of Appeals of Indiana | Memorandum Decision 48A02-1506-CR-746 | March 31, 2016 Page 3 of 5 probationer at a revocation hearing include: “(a) written notice of the claimed

violations of probation; (b) disclosure of the evidence against him; (c) an

opportunity to be heard and present evidence; (d) the right to confront and

cross-examine adverse witnesses; and (e) a neutral and detached hearing body.”

Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008).

[7] For purposes of appellate review, we review a hearing on a petition to revoke a

placement in a community corrections program the same way we review a

ruling on a petition to revoke probation. Cox v. State, 706 N.E.2d 547, 549 (Ind.

1999). “A defendant is not entitled to serve a sentence in either probation or a

community corrections program. Rather, placement in either is a ‘matter of

grace’ and a ‘conditional liberty that is a favor, not a right.’” Id. (quoting

Gilfillen v. State, 582 N.E.2d 821, 824 (Ind. 1991)).

[8] Smoots’ only argument on appeal is that the trial court denied him due process

when the court allegedly refused to allow him an opportunity to present

mitigating evidence to prove that the violations did “not warrant revocation.”

Appellant’s Br. at 9. However, Smoots had a full evidentiary hearing, was

represented by counsel, and was given the opportunity to present evidence.

After the State rested its case, Smoots’ defense counsel, rather than presenting

evidence, went straight into closing argument. Nothing in the transcript shows

that defense counsel attempted to present mitigating evidence but was denied

such an opportunity by the trial court. Because the trial court afforded Smoots

an evidentiary hearing, including an opportunity to present mitigating evidence

at that hearing, he has not shown that the trial court denied him his right to due

Court of Appeals of Indiana | Memorandum Decision 48A02-1506-CR-746 | March 31, 2016 Page 4 of 5 process. See, e.g., Vernon v. State, 903 N.E.2d 533, 537 (Ind. Ct. App. 2009)

(holding that the trial court did not violate the defendant’s due process rights

because the defendant was afforded an evidentiary hearing and, thus, was

provided an opportunity to present mitigating evidence).

[9] Moreover, Smoots does not explain on appeal what mitigating evidence he

would have presented to the trial court to prove that revocation of his probation

was not warranted. “[A] bald assertion of prejudice is insufficient to overcome

the burden placed upon the complaining party to affirmatively show prejudice.

This court will not presume prejudice.” Plan-Tec, Inc. v. Wiggins, 443 N.E.2d

1212, 1233 (Ind. Ct. App. 1983). Thus, even if the trial court had denied him

the opportunity to present evidence, which it did not, Smoots has not shown

that the alleged error prejudiced him. The trial court did not err when it

revoked Smoots’ probation.1

[10] Affirmed.

Riley, J., and May, J., concur.

1 Smoots does not challenge the sentence the trial court imposed upon revoking his probation.

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