MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Apr 10 2015, 10:15 am
Memorandum Decision shall not be regarded as
precedent or cited before any 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
Cara Schaefer Wieneke Gregory F. Zoeller
Wieneke Law Office, LLC Attorney General of Indiana
Plainfield, Indiana
Christina D. Pace
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Malcolm M. Pettis, April 10, 2015
Appellant-Defendant, Court of Appeals Case No.
84A04-1408-CR-396
v. Appeal from the
Vigo Superior Court
State of Indiana, The Honorable David R. Bolk,
Judge
Appellee-Plaintiff.
Cause Nos. 84D03-1104-FB-1220
and 84D03-0910-FB-3227
Kirsch, Judge.
[1] Malcom M. Pettis appeals the trial court’s determination that he violated the
terms of his probation and its imposition of a nine-year sentence. He raises the
following restated issues:
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I. Whether the State presented sufficient evidence that Pettis violated
a term of his probation; and
II. Whether the trial court abused its discretion when it ordered Pettis
to serve nine years of a previously-suspended ten-year sentence.
[2] We affirm.
Facts and Procedural History
[3] In March 2012, Pettis pleaded guilty to: (1) Class D felony assisting a criminal
and Class B felony dealing in cocaine pursuant to charges filed in 2009 and
2011. The trial court imposed a three-year executed sentence in the
Department of Correction (“DOC”) on the Class D felony assisting a criminal
conviction. On the Class B felony dealing in cocaine conviction, the trial court
imposed a thirteen-year sentence, with three years executed at DOC and ten
years suspended to probation. The trial court ordered the two sentences to run
consecutive to each other, resulting in a sixteen-year aggregate sentence, with
six years executed and ten suspended to probation.
[4] In April 2013, Pettis was released from DOC to probation and executed a
written probation agreement. As a term of his probation, Pettis agreed to “not
violate any laws or city ordinances.” Appellant’s App. at 69. He also
acknowledged that “[i]f it shall appear that I have violated the terms of my
probation or have been charged with having committed another offense, the
Court may revoke the suspension of sentence and may impose the sentence
which had been originally imposed.” Id. at 71.
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[5] In February and March 2014, then-Detective Denzil Lewis of the Vigo County
Task Force was involved in an investigation of Pettis. On February 27, 2014, a
confidential informant, who was working with Detective Lewis, drove to
Pettis’s residence. When the informant arrived, Pettis exited the residence and
entered a parked vehicle, obtained marijuana from it, and, while Pettis was
seated in the parked car, sold it to the informant. A second controlled drug buy
occurred on March 4, 2014. During this transaction, Pettis was driving when
he sold cocaine to a confidential informant, who was a passenger. Both of
those transactions were videotaped by the confidential informant. On April 30,
2014, now-Sergeant Lewis, who was at that time employed with the Terre
Haute Police Department, observed Pettis driving a vehicle. Pettis failed to
signal a turn, and Sergeant Lewis initiated a traffic stop. Sergeant Lewis
determined that Pettis’s license status reflected that he was a habitual traffic
violator. Pettis was arrested and transported to jail.
[6] Several weeks prior to the April 30 traffic stop, on March 20, 2014, Pettis had
been charged with Class D felony operating a vehicle as a habitual traffic
violator. As a result of that criminal charge, the State filed a notice of probation
violation on March 21, 2014. Appellant’s App. at 72. On May 8, 2014, the State
filed an amended notice of probation violation, alleging that, in addition to the
March 20, 2014 habitual traffic violator charge, Pettis had violated the terms of
his probation due to having been charged on May 5, 2014, with numerous
additional criminal offenses, including: three counts of Class A felony dealing
in cocaine; three counts of Class C felony possession of cocaine; one count of
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Class C felony dealing in marijuana; three counts of Class D felony maintaining
a common nuisance; and two counts of Class D felony being a habitual traffic
violator. Id. at 76.
[7] In July 2014, the trial court held an evidentiary hearing. Sergeant Lewis
testified to the two controlled drug buys in which he was involved when he was
on the Vigo County Drug Task Force, namely the buy on February 27, 2014
and the other on March 4, 2014. Photographs of each transaction, including
the substance sold, were admitted into evidence. Sergeant Lewis stated that he
field-tested the substance Pettis sold on March 4, 2014, and it tested positive for
cocaine. Upon cross-examination, Pettis’s counsel inquired whether Sergeant
Lewis sent the substances, identified during the hearing as marijuana and
cocaine, to the Indiana State Police laboratory for testing. Sergeant Lewis
replied, “[T]hat’s gonna be up to the [] case detective now. The case detective
will [] send that off to be tested[.]” Tr. at 17. Pettis’s counsel then asked if he
knew whether that had been done, to which Sergeant Lewis responded, “I do
not know whether or not that’s been done, I can only assume[,]” and “I cannot
give you anything definitive [], if it’s been sent off or not.” Id. at 17-18.
Sergeant Lewis also testified that there had been additional controlled buys
involving Pettis, but he was not the lead detective in charge of those
transactions, and thus, he did not testify to the specific circumstances
surrounding them.
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[8] At the conclusion of the hearing, the trial court determined that Pettis had
violated the terms of his probation, revoked it, and sentenced him to serve nine
years of his previously-suspended sentence. Pettis now appeals.
Discussion and Decision
I. Sufficiency of the Evidence
[9] “Probation is a matter of grace left to trial court discretion, not a right to which
a criminal defendant is entitled.” Heaton v. State, 984 N.E.2d 614, 616 (Ind.
2013) (citing Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007)). The trial court
determines the conditions of probation and may revoke probation if the
conditions are violated. Ind. Code § 35-38-2-3(a). Pettis contends that the
evidence was insufficient to establish that he violated his probation. When the
sufficiency of evidence is challenged, we will neither “reweigh the evidence nor
reassess witness credibility.” Whatley v. State, 847 N.E.2d 1007, 1010 (Ind. Ct.
App. 2006). Rather, we look to the evidence most favorable to the State and
affirm the judgment if there is substantial evidence of probative value
supporting revocation. Id. The State’s burden of proof regarding alleged
probation violations is proof by a preponderance of the evidence. Id. When the
alleged violation is the commission of a new crime, the State need not show
that the probationer has been convicted of the crime. Id. (citing Richeson v.
State, 648 N.E.2d 384, 389 (Ind. Ct. App. 1995), trans. denied). The trial court
only needs to find that there was probable cause to believe that the defendant
violated a criminal law. Id.
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[10] In this appeal, Pettis claims that the State “failed to carry its burden that Pettis
violated his probation by dealing or possessing cocaine, dealing marijuana, and
maintaining a common nuisance.” Appellant’s Br. at 2-3. Specifically, he argues
that the substances he sold to a confidential informant during videotaped drug
buys were not sent to the police laboratory for testing and were thus never
conclusively established as marijuana and cocaine. He maintains, “Field tests
are only able to determine whether a substance is ‘presumptive’ for a certain
drug; further testing at a lab must be done to confirm whether the substance is
in fact an illegal drug.” Id. at 4. Therefore, he claims, the State failed to show
that the substances that he sold were controlled substances and that reversal of
his probation revocation is warranted. We disagree.
[11] First, Pettis cites to no authority for the proposition that lab testing must occur
“to confirm whether the substance is in fact an illegal drug”; thus, he has
waived the issue for consideration. Ind. Appellate Rule 46(A)(8)(a); McMahon
v. State, 856 N.E.2d 743, 751 (Ind. Ct. App. 2006). Second, contrary to Pettis’s
assertion that the substances had only been subject to field-testing, Sergeant
Lewis did not testify that the substances were not sent to ISP lab; he testified
that he did not know whether the substances had been sent to the ISP lab.
Third, even assuming that, as claimed, the substances were only field-tested by
then-Detective Lewis, Indiana case law has established that the identity of a
controlled substance may be established through witness testimony and
circumstantial evidence. Cherry v. State, 971 N.E.2d 726, 732 (Ind. Ct. App.
2012) (quoting Helton v. State, 907 N.E.2d 1020, 1024 (Ind. 2009)), trans. denied.
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The opinion of someone sufficiently experienced with the drug may establish its
identity. Vasquez v. State, 741 N.E.2d 1214, 1216 (Ind. 2001) (officer’s lay
testimony supported finding that substance was toluene); Boggs v. State, 928
N.E.2d 855, 860 (Ind. Ct. App. 2010) (evidence held sufficient to identify
substances where police officers testified that green leafy substance was
marijuana and substance on plate was methamphetamine), trans. denied.
[12] Regardless, even if, as Pettis claims, the State failed to prove that the substances
Pettis sold to the confidential informant were illegal substances, Pettis concedes
that the State carried its burden of proving that he drove on three occasions as a
habitual traffic violator. Appellant’s Br. 3, 5. Each of those was a felony offense.
It is well settled that violation of a single condition of probation is sufficient to
revoke probation. Jenkins v. State, 956 N.E.2d 146, 149 (Ind. Ct. App. 2011),
trans. denied. Considering the record before us, we conclude the evidence was
sufficient to show that Pettis violated the terms of his probation.
II. Sentence Imposed
[13] Pettis claims that the trial court abused its discretion when it ordered Pettis to
serve nine years of a previously-suspended ten-year sentence. Where a trial
court has exercised its grace by granting a defendant probation in lieu of
incarceration, it has considerable leeway in deciding how to proceed where the
defendant then violates the conditions of his probation. Prewitt, 878 N.E.2d at
188. Once a trial court finds that a person has violated a term of his or her
probation, the court may impose one or more of the following sanctions: (1)
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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.
[14] The sanction imposed by the trial court upon a finding of a probation violation
is reviewed on appeal for an abuse of discretion. Brandenburg v. State, 992
N.E.2d 951, 953 (Ind. Ct. App. 2013), trans. denied; Sanders v. State, 825 N.E.2d
952, 956 (Ind. Ct. App. 2005), trans. denied. An abuse of discretion occurs
where the trial court’s decision is clearly against the logic and effect of the facts
and circumstances before the court. Brandenburg, 992 N.E.2d at 953.
[15] Pettis argues that the trial court’s decision to order him to serve nine years was
an abuse of discretion because the State only met its burden of proving that he
drove on three occasions as a habitual traffic violator, and each offense was
“minor in nature.” Appellant’s Br. at 5. Therefore, he contends, “Imposing a 9-
year sentence for a minor violation constituted an abuse of discretion.” Id. We
reject this claim.
[16] Here, Pettis was placed on probation in April 2013. In less than one year, he
was videotaped selling marijuana and cocaine in at least two controlled drug
buys. In May 2014, he was charged with committing twelve felonies, including
three counts of Class A felony dealing in cocaine, three counts of Class C felony
possession of cocaine, three counts of Class D felony maintaining a common
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nuisance, one count Class C felony dealing in marijuana, and two counts of
Class D felony operating a vehicle as a habitual traffic violator. The trial court
found:
I have evidence of two separate narcotic dealing transactions [], and
then I have two separate driving offenses, H.T.V. offenses, and I think
the State’s met its burden to prove by a preponderance of the evidence
that Mr. Pettis violated the law with respect to those occasions. So I’m
finding that Mr. Pettis has violated the terms of his probation.
Tr. at 29. Although a trial court has several alternative sanctions it may impose
where it has found that a defendant has violated his probation, one of those
sanctions is to order execution of the sentence that was previously suspended.
See Ind. Code § 35-38-2-3(h). Noting that Pettis “hasn’t modified his lifestyle”
while out on probation for a year, the trial court terminated his probation and
ordered him to serve nine years. Tr. at 30. This was less than the balance of his
remaining sentence. We find that the trial court’s imposition of the nine-year
sentence was not an abuse of discretion.
[17] Affirmed.
Friedlander, J., and Crone, J., concur.
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