MEMORANDUM DECISION FILED Dec 19 2016, 9:10 am Pursuant to Ind. Appellate Rule 65(D), CLERK this Memorandum Decision shall not be Indiana Supreme Court Court of Appeals regarded as precedent or cited before any and Tax Court
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 Matthew J. McGovern Gregory F. Zoeller Anderson, Indiana Attorney General of Indiana
Kelly A. Loy Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Tyrone D. Payton, December 19, 2016 Appellant-Defendant, Court of Appeals Case No. 22A01-1605-CR-980 v. Appeal from the Floyd Superior Court State of Indiana, The Honorable Susan L. Orth, Appellee-Plaintiff. Judge Trial Court Cause No. 22D01-0410-FB-754
Barnes, Judge.
Court of Appeals of Indiana | Memorandum Decision 22A01-1605-CR-980 | December 19, 2016 Page 1 of 7 Case Summary [1] Tyrone Payton appeals the revocation of his probation. We affirm.
Issues [2] Payton raises one issue, which we revise and restate as:
I. whether the trial court properly revoked his probation; and
II. whether the trial court properly ordered him to serve four years of his previously-suspended sentence.
Facts [3] In 2006, Payton pled guilty to Class B felony conspiracy to commit burglary,
and he was sentenced to ten years with five years suspended to probation.
Between 2008 and 2010, the probation department filed three notices of
probation violation. In 2011, the probation department filed a fourth notice of
probation violation, and Payton stipulated to violating his probation. The trial
court extended Payton’s probation by six months. In 2012, the probation
department filed fifth and sixth notices of probation violation. In 2014, the
probation department filed a seventh notice of probation violation, and Payton
again stipulated to violating his probation. The trial court ordered Payton to
undergo intensive probation with the Floyd County Intensive Probation
Program (“FLIP”). The probation department filed an eighth notice of
probation violation in 2015.
Court of Appeals of Indiana | Memorandum Decision 22A01-1605-CR-980 | December 19, 2016 Page 2 of 7 [4] In July 2015, the probation department filed a ninth notice of probation
violation, which it later amended and alleged the following violations: (1)
failing to maintain good behavior; (2) violating a law by committing new
offenses; (3) failing to report for probation; (4) using alcohol or controlled
substances not prescribed by a physician; and (5) failing to pay probation fees.
At the probation revocation hearing, the State presented evidence that Payton:
(1) failed to report for at least two probation appointments; (2) on December 16,
2014, he admitted to using marijuana and Lortabs that were not prescribed by a
doctor; (3) on January 15, 2015, he admitted to using marijuana and
oxycodone; (4) he failed to attend appointments at LifeSprings; and (5) he was
charged with additional criminal offenses in July 2015. The additional charges
were Level 4 felony unlawful possession of a firearm by a serious violent felon,
Level 5 felony carrying a handgun with a prior felony conviction, Level 5
felony battery, Level 5 felony obliterating identifying marks on a handgun, and
Level 6 felony criminal recklessness. During his testimony, Payton admitted
that he had used illegal drugs, that he had been arrested on new charges, and
that he had missed probation appointments.
[5] At the probation revocation hearing, the State sought to admit a file stamped
copy of the charging information and probable cause affidavit for the new
offenses. Payton objected based on “hearsay,” but the trial court admitted the
exhibit “for the purpose of showing that there was an arrest.” Tr. pp. 30-31.
We note that the exhibit submitted to this court contains only the charging
Court of Appeals of Indiana | Memorandum Decision 22A01-1605-CR-980 | December 19, 2016 Page 3 of 7 information and the first page of the probable cause affidavit. It is unclear
whether the exhibit admitted at trial included the full probable cause affidavit.
[6] The trial court found that Payton violated his probation by failing to attend
probation appointments, using illegal drugs, being charged with new crimes,
and failing to attend LifeSpring. The trial court revoked Payton’s probation
and ordered him to serve four years of his previously-suspended sentence.
Payton now appeals.
Analysis I. Probation Revocation
[7] Payton argues that the trial court erred by revoking his probation. The State
must prove a violation of probation by a preponderance of the evidence. Dokes
v. State, 971 N.E.2d 178, 179 (Ind. Ct. App. 2012). The decision to revoke
probation lies within the sound discretion of the trial court, and it may revoke
probation if the conditions thereof are violated. Lamply v. State, 31 N.E.3d
1034, 1037 (Ind. Ct. App. 2015). We review challenges to the revocation of
probation for an abuse of discretion. Rudisel v. State, 31 N.E.3d 984, 987 (Ind.
Ct. App. 2015). A trial court abuses its discretion when its decision is clearly
against the logic and effect of the facts and circumstances before it. Figures v.
State, 920 N.E.2d 267, 271 (Ind. Ct. App. 2010). If there is substantial evidence
of probative value to support the trial court’s conclusion that a defendant has
violated any term of probation, we will affirm its decision to revoke probation.
Id. at 272.
Court of Appeals of Indiana | Memorandum Decision 22A01-1605-CR-980 | December 19, 2016 Page 4 of 7 [8] Payton’s challenge centers on the trial court’s reliance on the State’s exhibit that
contained the charging information and probable cause affidavit. Payton
argued at the revocation hearing that the document contained hearsay and, on
appeal, notes that the document was not certified. The Indiana Rules of
Evidence in general and the rules against hearsay in particular do not apply in
probation revocation proceedings. Ind. Evidence Rule 101(d)(2); Cox v. State,
706 N.E.2d 547, 550 (Ind. 1999). Our supreme court has held that hearsay
evidence may be admitted without violating a probationer’s due process rights if
the hearsay is substantially trustworthy. Smith v. State, 971 N.E.2d 86, 90 (Ind.
2012); Reyes v. State, 868 N.E.2d 438, 442 (Ind. 2007). Given the lack of a full
copy of the probable cause affidavit, it is impossible to determine whether the
exhibit was substantially trustworthy. We conclude, however, that any error in
the admission of the exhibit was harmless.
[9] The violation of a single condition of probation is enough to support a
probation revocation. Pierce v. State, 44 N.E.3d 752, 755 (Ind. Ct. App. 2015).
Payton does not challenge the trial court’s finding that he violated his probation
Free access — add to your briefcase to read the full text and ask questions with AI
MEMORANDUM DECISION FILED Dec 19 2016, 9:10 am Pursuant to Ind. Appellate Rule 65(D), CLERK this Memorandum Decision shall not be Indiana Supreme Court Court of Appeals regarded as precedent or cited before any and Tax Court
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 Matthew J. McGovern Gregory F. Zoeller Anderson, Indiana Attorney General of Indiana
Kelly A. Loy Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Tyrone D. Payton, December 19, 2016 Appellant-Defendant, Court of Appeals Case No. 22A01-1605-CR-980 v. Appeal from the Floyd Superior Court State of Indiana, The Honorable Susan L. Orth, Appellee-Plaintiff. Judge Trial Court Cause No. 22D01-0410-FB-754
Barnes, Judge.
Court of Appeals of Indiana | Memorandum Decision 22A01-1605-CR-980 | December 19, 2016 Page 1 of 7 Case Summary [1] Tyrone Payton appeals the revocation of his probation. We affirm.
Issues [2] Payton raises one issue, which we revise and restate as:
I. whether the trial court properly revoked his probation; and
II. whether the trial court properly ordered him to serve four years of his previously-suspended sentence.
Facts [3] In 2006, Payton pled guilty to Class B felony conspiracy to commit burglary,
and he was sentenced to ten years with five years suspended to probation.
Between 2008 and 2010, the probation department filed three notices of
probation violation. In 2011, the probation department filed a fourth notice of
probation violation, and Payton stipulated to violating his probation. The trial
court extended Payton’s probation by six months. In 2012, the probation
department filed fifth and sixth notices of probation violation. In 2014, the
probation department filed a seventh notice of probation violation, and Payton
again stipulated to violating his probation. The trial court ordered Payton to
undergo intensive probation with the Floyd County Intensive Probation
Program (“FLIP”). The probation department filed an eighth notice of
probation violation in 2015.
Court of Appeals of Indiana | Memorandum Decision 22A01-1605-CR-980 | December 19, 2016 Page 2 of 7 [4] In July 2015, the probation department filed a ninth notice of probation
violation, which it later amended and alleged the following violations: (1)
failing to maintain good behavior; (2) violating a law by committing new
offenses; (3) failing to report for probation; (4) using alcohol or controlled
substances not prescribed by a physician; and (5) failing to pay probation fees.
At the probation revocation hearing, the State presented evidence that Payton:
(1) failed to report for at least two probation appointments; (2) on December 16,
2014, he admitted to using marijuana and Lortabs that were not prescribed by a
doctor; (3) on January 15, 2015, he admitted to using marijuana and
oxycodone; (4) he failed to attend appointments at LifeSprings; and (5) he was
charged with additional criminal offenses in July 2015. The additional charges
were Level 4 felony unlawful possession of a firearm by a serious violent felon,
Level 5 felony carrying a handgun with a prior felony conviction, Level 5
felony battery, Level 5 felony obliterating identifying marks on a handgun, and
Level 6 felony criminal recklessness. During his testimony, Payton admitted
that he had used illegal drugs, that he had been arrested on new charges, and
that he had missed probation appointments.
[5] At the probation revocation hearing, the State sought to admit a file stamped
copy of the charging information and probable cause affidavit for the new
offenses. Payton objected based on “hearsay,” but the trial court admitted the
exhibit “for the purpose of showing that there was an arrest.” Tr. pp. 30-31.
We note that the exhibit submitted to this court contains only the charging
Court of Appeals of Indiana | Memorandum Decision 22A01-1605-CR-980 | December 19, 2016 Page 3 of 7 information and the first page of the probable cause affidavit. It is unclear
whether the exhibit admitted at trial included the full probable cause affidavit.
[6] The trial court found that Payton violated his probation by failing to attend
probation appointments, using illegal drugs, being charged with new crimes,
and failing to attend LifeSpring. The trial court revoked Payton’s probation
and ordered him to serve four years of his previously-suspended sentence.
Payton now appeals.
Analysis I. Probation Revocation
[7] Payton argues that the trial court erred by revoking his probation. The State
must prove a violation of probation by a preponderance of the evidence. Dokes
v. State, 971 N.E.2d 178, 179 (Ind. Ct. App. 2012). The decision to revoke
probation lies within the sound discretion of the trial court, and it may revoke
probation if the conditions thereof are violated. Lamply v. State, 31 N.E.3d
1034, 1037 (Ind. Ct. App. 2015). We review challenges to the revocation of
probation for an abuse of discretion. Rudisel v. State, 31 N.E.3d 984, 987 (Ind.
Ct. App. 2015). A trial court abuses its discretion when its decision is clearly
against the logic and effect of the facts and circumstances before it. Figures v.
State, 920 N.E.2d 267, 271 (Ind. Ct. App. 2010). If there is substantial evidence
of probative value to support the trial court’s conclusion that a defendant has
violated any term of probation, we will affirm its decision to revoke probation.
Id. at 272.
Court of Appeals of Indiana | Memorandum Decision 22A01-1605-CR-980 | December 19, 2016 Page 4 of 7 [8] Payton’s challenge centers on the trial court’s reliance on the State’s exhibit that
contained the charging information and probable cause affidavit. Payton
argued at the revocation hearing that the document contained hearsay and, on
appeal, notes that the document was not certified. The Indiana Rules of
Evidence in general and the rules against hearsay in particular do not apply in
probation revocation proceedings. Ind. Evidence Rule 101(d)(2); Cox v. State,
706 N.E.2d 547, 550 (Ind. 1999). Our supreme court has held that hearsay
evidence may be admitted without violating a probationer’s due process rights if
the hearsay is substantially trustworthy. Smith v. State, 971 N.E.2d 86, 90 (Ind.
2012); Reyes v. State, 868 N.E.2d 438, 442 (Ind. 2007). Given the lack of a full
copy of the probable cause affidavit, it is impossible to determine whether the
exhibit was substantially trustworthy. We conclude, however, that any error in
the admission of the exhibit was harmless.
[9] The violation of a single condition of probation is enough to support a
probation revocation. Pierce v. State, 44 N.E.3d 752, 755 (Ind. Ct. App. 2015).
Payton does not challenge the trial court’s finding that he violated his probation
by failing to attend probation appointments, using illegal drugs, or failing to
attend LifeSpring. Those violations were sufficient to support the revocation of
his probation. See, e.g., Jenkins v. State, 956 N.E.2d 146, 149 (Ind. Ct. App.
2011) (holding that the probationer’s failure to timely report to the probation
department, by itself, was sufficient to support the revocation of his probation),
trans. denied.
Court of Appeals of Indiana | Memorandum Decision 22A01-1605-CR-980 | December 19, 2016 Page 5 of 7 II. Sentence
[10] Payton also challenges the trial court’s imposition of four years of his
previously-suspended sentence. Upon the revocation of probation, the trial
court may: (1) continue the person on probation, with or without modifying or
enlarging the conditions; (2) extend the person’s probationary period for not
more than one year beyond the original probationary period; and (3) order
execution of all or part of the sentence that was suspended at the time of initial
sentencing. Ind. Code § 35-38-2-3(h). We review a trial court’s sentencing
decisions for probation violations for an abuse of discretion. Prewitt v. State, 878
N.E.2d 184, 188 (Ind. 2007).
[11] Payton argues that, without consideration of his new arrest, the trial court
would not have imposed four years of his previously-suspended sentence. We
disagree. Payton has repeatedly violated his probation and was shown
significant leniency in the past. Despite that leniency, Payton again violated his
probation by failing to attend probation appointments, using illegal drugs, and
failing to attend LifeSpring. The trial court did not abuse its discretion by
imposing four years of the previously-suspended sentence as a result of these
violations. See, e.g., Jenkins, 956 N.E.2d at 150 (“In light of the current
violations and Jenkins’ history of probation violations, we cannot say that the
trial court abused its discretion when it ordered him to serve twelve years of his
previously suspended sentence.”).
Court of Appeals of Indiana | Memorandum Decision 22A01-1605-CR-980 | December 19, 2016 Page 6 of 7 Conclusion [12] The trial court properly revoked Payton’s probation and ordered him to serve
four years of the previously-suspended sentence. We affirm.
[13] Affirmed.
Bailey, J., and Riley, J., concur.
Court of Appeals of Indiana | Memorandum Decision 22A01-1605-CR-980 | December 19, 2016 Page 7 of 7