Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any Jul 09 2013, 6:31 am
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:
TIMOTHY J. BURNS GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
JOSEPH Y. HO
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
EUGENE HILL, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1210-CR-797
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Shatrese Flowers, Commissioner
Cause No. 49G21-1205-CM-33868
July 9, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
MATHIAS, Judge
The Marion Superior Court revoked Eugene Hill’s (“Hill”) probation after Hill
admitted to four violations of his probation. The trial court ordered Hill to serve the
stipulated 180-day sentence in the Marion County Jail, rather than in home detention as
requested by Hill. On appeal, Hill argues the trial court abused its discretion when it
ordered him to serve his sentence in the Marion County Jail.1 We disagree and affirm.
Facts and Procedural History
On May 21, 2012, the State charged Hill with one count of Class A misdemeanor
invasion of privacy for his violation of a protective order issued to protect Andrea
Gilmore. The trial court entered a no-contact order to protect Gilmore and placed Hill on
pre-trial monitoring on May 23, 2012.
On June 21, 2012, Hill was charged with and pleaded guilty to a second count of
Class A misdemeanor invasion of privacy for violating the State’s no-contact order not
even one month earlier. Pursuant to his plea agreement, the first count was dismissed,
and Hill was sentenced to one year, with credit for sixty-four (64) days and the remainder
suspended to probation. As conditions of his probation, Hill was required to report
regularly to a drug laboratory for urine testing and to attend domestic violence
counseling.
On August 20, 2012, the probation department filed a notice of probation
violation. On September 10, 2012, an amended notice was filed, including five
allegations: (1) that Hill failed to report to the drug laboratory on August 14, 2012; (2)
that Hill submitted a urine sample that tested positive for THC; (3) that Hill failed to
1
We held oral argument in this case at Trine University in Angola, Indiana on June 27, 2013 as part of
the programming for Hoosier Girls State. We thank the attorneys for their able advocacy, and the
attendees and organizers of Hoosier Girls State, and Trine University for their hospitality.
2
comply with the court order to attend domestic violence counseling; (4) that Hill failed to
report to the drug laboratory on August 24, 2012; and (5) that Hill failed to report to the
drug laboratory on August 28, 2012.
An evidentiary hearing was held in Marion Superior Court on September 12, 2012.
Hill admitted to the first four allegations, and agreed to serve 180 days with placement at
the court’s discretion, although Hill requested home detention. The trial court revoked
Hill’s probation and ordered that the 180-day sentence be served in the Marion County
Jail. Hill now appeals.
Discussion and Decision
Hill argues that the trial court abused its discretion when it revoked his probation
and sentenced him to 180 days in the Marion County Jail based on the court’s
consideration of Hill’s previous criminal history. Hill also claimed he would likely lose
his employment if he were incarcerated. Appellant’s Br. at 4-5.
A trial court’s decision to revoke probation is reviewed for an abuse of discretion.
Rosa v. State, 832 N.E.2d 1119, 1121 (Ind. Ct. App. 2005). “An abuse of discretion
occurs if the decision is against the logic and effect of the facts and circumstances before
the court.” Id.
Under Indiana Code section 35-38-2-3(a), a court may revoke probation if a
person violates a condition of probation during the probationary period. When
determining whether a probation violation occurred, the trial court may consider “any
relevant evidence bearing some substantial indicia of reliability,” and the State must
prove a violation by a preponderance of the evidence. Whatley v. State, 847 N.E.2d
3
1007, 1010 (Ind. Ct. App. 2006). After finding that a person has violated a condition 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; or (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).
Without citation to any authority, Hill argues that the trial court abused its
discretion because it “relied heavily on [his] criminal history, as though the sentencing
were taking place after conviction.” Appellant’s Br. at 4. Hill also states, “[i]t is true that
his prior record was not exemplary, but the effect of the Court’s decision was decidedly
negative. . .” arguing that his risk of loss of employment if incarcerated weighed heavily
in favor of home detention. Id.
The State and Hill reached an agreement on the day of the hearing to limit the
revocation to 180 days, and left placement open to the court. Tr. p. 10. By voluntarily
waiving a contested hearing and agreeing to a 180-day sentence with open placement,
Hill accepted the risk that the court might place him in the Marion County Jail, rather
than placing him in home detention.2
The trial court determined that a sentence to Marion County Jail was appropriate
because Hill “was placed on probation June 21st and his probation is [being] revoked less
than three months later. In addition [Hill] has at least four or five felony convictions not
counting his misdemeanor convictions. . . .” Tr. pp. 16-17. The court also found that Hill
2
The record does reflect that Hill was willing to pay for home detention services and testified that his
employment would be at risk if he were incarcerated.
4
was not an appropriate candidate for home detention because of his prior and continued
criminal activity. In fact, just days before his probation was revoked in this case, he was
sentenced for the commission of another crime.3 Under these facts and circumstances,
the trial court did not abuse its discretion when it denied Hill’s request for home
detention.
Hill admits that he violated the conditions of his probation on four separate
occasions and agreed to have his probation revoked for 180 days. Under Indiana Code
section 35-38-2-3-(h) the trial court’s available sanctions include execution of all or part
of a suspended sentence. Although Hill requested an alternative placement, we conclude
that the trial court acted within its discretion when it ordered Hill to serve 180 days of his
previously suspended sentence in the Marion County Jail.
Affirmed.
BARNES, J., and CRONE, J., concur.
3
Hill acknowledged in the evidentiary hearing that he had been sentenced to four years of home detention
for another crime in Marion Criminal Court, Cause Number 49G14-1108-FD-62287. Tr. pp. 12-15.
5