Timothy Ford v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 11, 2019
• Docket: 19A-CR-662
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Sep 11 2019, 9:08 am

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 R. Patrick Magrath Curtis T. Hill, Jr. Laura R. Raiman Attorney General Alcorn Sage Schwartz & Magrath, LLP Dawn Rauch Madison, Indiana Certified Legal Intern Samantha M. Sumcad Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Timothy Ford, September 11, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-662 v. Appeal from the Bartholomew Superior Court State of Indiana, The Honorable Appellee-Plaintiff James D. Worton, Judge Trial Court Cause No. 03D01-1406-FA-2497

Vaidik, Chief Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-662 | September 11, 2019 Page 1 of 4 Case Summary [1] Timothy Ford appeals the trial court’s order requiring him to serve his six-year

suspended sentence in the Department of Correction for violating his probation.

We affirm.

Facts and Procedural History [2] In 2014, Ford pled guilty to Class B felony dealing in a narcotic drug. The trial

court sentenced him to twelve years, with eight years executed in the DOC and

four years suspended to probation. The court later modified Ford’s sentence to

six years executed in the DOC and six years suspended, with three years of

probation.

[3] In January 2018, the State filed a petition to revoke Ford’s probation, alleging

that he failed to report for drug screens on “multiple occasions.” Appellant’s

App. Vol. II p. 98. An initial hearing was set for January 29. Ford, however,

failed to appear at the initial hearing, and a warrant was issued for his arrest.

Ford was arrested on the warrant one year later in January 2019. See 03D01-

1406-FA-2497.

[4] A fact-finding/dispositional hearing was held in February 2019. At the

hearing, Ford admitted that he violated his probation by not reporting for drug

screens. Tr. pp. 4, 6-7. According to Ford, he didn’t report because he didn’t

have a ride or money for the bus, which meant that he had to walk three hours

to get to the probation department. Id. at 8. The probation officer testified that

Court of Appeals of Indiana | Memorandum Decision 19A-CR-662 | September 11, 2019 Page 2 of 4 the probation department’s recommendation was that Ford “execute the

balance of his sentence,” not so much because he failed to report for drug

screens but more so because of “what [h]as transpired since.” Id. at 11-12.

That is, the probation officer explained that after Ford failed to appear at the

initial hearing in January 2018, the probation department “hadn’t heard

anything from him” until he was arrested on the warrant in January 2019.1 Id.

at 12. The trial court ordered Ford to serve his six-year suspended sentence in

the DOC.

[5] Ford now appeals.

Discussion and Decision [6] Probation revocation is a two-step process. First, the trial court must make a

factual determination that a violation of a condition of probation occurred.

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

determine if the violation warrants revocation of probation. Id. When a

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

and determine whether the violation warrants revocation. Id. A probationer

who admits to the violation must be given an opportunity to offer mitigating

evidence suggesting the violation does not warrant revocation. Id. A trial

court’s sentencing decision for violating probation is reviewed for an abuse of

1 In addition, the record shows that in January 2019 Ford was charged with felony resisting law enforcement for a July 2018 incident. See 49G09-1901-F6-485. This charge appears to be pending.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-662 | September 11, 2019 Page 3 of 4 discretion. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007); Ripps v. State, 968

N.E.2d 323, 326 (Ind. Ct. App. 2012).

[7] Ford admits that he violated his probation. He argues, however, that his

“violation was technical in nature” and therefore the trial court abused its

discretion by ordering him to serve his six-year suspended sentence in the DOC.

Appellant’s Br. p. 11. Accordingly, he asks us to “reinstate [his] probation.” Id.

at 12.

[8] Ford acknowledges that he pled guilty to dealing drugs, was ordered to undergo

drug screens, and then didn’t report for them. But what Ford does not

acknowledge is that when the State filed a petition to revoke his probation for

not reporting for drug screens, he failed to appear at the January 2018 initial

hearing, and a warrant was issued for his arrest. Ford was arrested on the

warrant one year later in January 2019. During that one-year period, Ford did

not contact probation. Based on Ford’s serious failures to abide by the rules of

probation, the trial court did not abuse its discretion in ordering Ford to serve

his six-year suspended sentence in the DOC rather than returning him to

[9] Affirmed.

Riley, J., and Bradford, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-662 | September 11, 2019 Page 4 of 4