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

• Court: Indiana Court of Appeals
• Decided: July 19, 2018
• Docket: 48A05-1712-CR-2825
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jul 19 2018, 8:59 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Anthony C. Lawrence Curtis T. Hill, Jr. Anderson, Indiana Attorney General of Indiana Michael Gene Worden Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Timothy Smith, July 19, 2018 Appellant-Defendant, Court of Appeals Case No. 48A05-1712-CR-2825 v. Appeal from the Madison Circuit Court State of Indiana, The Honorable Thomas Newman, Appellee-Plaintiff Jr., Judge Trial Court Cause No. 48C03-1509-FC-1420

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 48A05-1712-CR-2825 | July 19, 2018 Page 1 of 4 [1] Timothy Smith appeals the trial court’s order revoking his probation and

ordering that he serve the balance of his previously-suspended sentence in the

Department of Correction (DOC). Finding no error, we affirm.

[2] On December 14, 2015, Smith pleaded guilty to multiple counts of fraud and

fraud on a financial institution, as well as corrupt business influence and theft.

On December 28, 2015, the trial court sentenced Smith to an aggregate term of

six years, fully suspended to probation.

[3] On September 19, 2016, the probation department filed a notice of probation

violation, alleging that Smith had failed to timely report to probation, pay

probation and administrative fees, and maintain employment. At the hearing

on the notice, Smith admitted to the allegations. The trial court found that

Smith had violated the conditions of his probation but nevertheless permitted

Smith to return to probation, adding probation conditions requiring Smith to

report weekly to probation and to gain employment within thirty days.

[4] On March 28, 2017, the probation department filed a second notice of

probation violation, alleging that Smith had failed to timely report to probation,

pay his probation fees, and gain employment. An amended notice of violation

was filed on October 30, 2017, adding allegations that Smith had failed to keep

probation informed of his address and secure a travel permit for out-of-state

travel, and had committed a new criminal offense.

[5] The trial court held a hearing on the amended notice of violation on November

6, 2017. Smith’s probation officer testified that in addition to failing to pay his

Court of Appeals of Indiana | Memorandum Decision 48A05-1712-CR-2825 | July 19, 2018 Page 2 of 4 fees, obtain employment, or keep the probation department apprised of his

address, Smith had traveled to Illinois without permission and was charged

there with a new criminal offense. The probation officer testified that Smith

had called her a couple of times, telling her that he was homeless and having

difficulty finding employment because he did not have a birth certificate and

had recently been shot. She stated that she would have helped him find

housing, but he hung up the telephone and she was unable to help. She also

testified that she had attempted to help him find employment even without a

birth certificate by getting him an interview at a restaurant, but he failed to

show up to the interview. Tr. Vol. II p. 24.

[6] Smith admitted that he traveled to Illinois without permission. He also

admitted that he did not pay his probation fees, report regularly to probation, or

find employment. He testified that his sister was no longer helping him

financially, that he had no means of transportation, and that he could not find

employment because he had no identification and his jaw had been wired shut.

The trial court found that Smith violated the conditions of probation, revoked

probation, and ordered that he serve the balance of the previously-suspended

sentence. Smith now appeals.

[7] Smith’s sole argument is that the trial court should not have ordered him to

serve the entire balance of the previously-suspended sentence. With respect to

the sanction imposed by the trial court, we note that probation is a matter of

grace left to the trial court’s discretion rather than a right to which a defendant

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

Court of Appeals of Indiana | Memorandum Decision 48A05-1712-CR-2825 | July 19, 2018 Page 3 of 4 court determines the terms and conditions of probation, and the trial court may

revoke probation if the terms and conditions are violated. E.g., Castillo v. State,

67 N.E.3d 661, 663-64 (Ind. Ct. App. 2017), trans. denied. A trial court may

revoke a defendant’s probation for violation of a single condition of his

probation. E.g., Pierce v. State, 44 N.E.3d 752, 755 (Ind. Ct. App. 2015).

[8] It is undisputed that Smith violated multiple conditions of probation; indeed, he

admitted as much at the violation hearing. Smith insists that his violations

were merely “technical” and, as such, the sanction imposed by the trial court is

unwarranted. Appellant’s Br. p. 8. Caselaw does not distinguish between

“technical” and “substantive” violations of probation, nor would such a

distinction be meaningful. For example, in this case, because Smith so

frequently failed to report to probation, he had not submitted to a drug screen

since July 2016—well over a year—meaning that probation had no way of

knowing whether he was using illegal substances. Moreover, while Smith

claims to have been dealing with challenging circumstances—claims that are

supported by no evidence other than his own self-serving testimony—he gave

his probation officer no opportunity to help him overcome the obstacles he was

facing. Given that Smith admittedly violated multiple conditions of probation,

the trial court did not err by revoking probation and ordering that he serve the

balance of his sentence in the DOC.

[9] The judgment of the trial court is affirmed.

May, J., and Robb, J., concur.

Court of Appeals of Indiana | Memorandum Decision 48A05-1712-CR-2825 | July 19, 2018 Page 4 of 4