MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
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
Michael D. Frischkorn Gregory F. Zoeller
Frischkorn Law LLC Attorney General of Indiana
Fortville, Indiana
Richard C. Webster
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Donald Ray Steger, May 13, 2015
Appellant-Defendant, Court of Appeals Case No. May 13 2015, 9:47 am
48A02-1409-CR-685
v. Appeal from the
Madison Circuit Court
State of Indiana, The Honorable Dennis D. Carroll,
Judge
Appellee-Plaintiff.
Cause No. 48C06-1303-FD-553
Kirsch, Judge.
[1] Donald Steger appeals the trial court’s revocation of his probation and its
imposition of a twelve-month sentence, raising the following restated issues:
I. Whether the State presented sufficient evidence to support the
revocation of Steger’s probation; and
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II. Whether the trial court’s reasons for revoking Steger’s probation
are improperly reflected in the “Sanctions Order,” the “Abstract of
Judgment,” and the Chronological Case Summary (“CCS”).
[2] We affirm and remand with instructions.
Facts and Procedural History
[3] The State charged Steger with Class D felony possession of methamphetamine,
Class D felony possession of a controlled substance, Class D felony unlawful
possession or use of a legend drug, Class D felony maintaining a common
nuisance, and Class A misdemeanor possession of paraphernalia. Steger
entered into a plea agreement, whereby he would plead guilty to Class D felony
possession of methamphetamine,1 and the State would dismiss the remaining
charges. Sentencing was left open to the discretion of the trial court, with a cap
of one year on the executed portion of the sentence.
[4] On August 26, 2013, the trial court accepted Steger’s guilty plea and sentenced
him to twenty-four months, suspended to supervised probation. The pertinent
conditions of Steger’s probation required him to abstain from using alcohol and
illicit drugs, maintain employment of at least thirty-five hours per week, and
comply with the requirements of the Department of Child Services (“DCS”) in
connection with an adjudication that his child was in need of services.
Appellant’s App. at 107.
1
See Ind. Code § 35-48-4-6.1(a). We note that, effective July 1, 2014, a new version of this criminal statute
was enacted; however, because Steger committed his crimes prior to that date, we will apply the applicable
statute in effect at that time.
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[5] During June and July of 2014, the Madison County Probation Department filed
a notice of probation violation, an amended notice, a corrected notice, and
finally, an “Amended/Corrected Notice of Probation Violation.” Appellant’s
Br. at 2. The alleged violations included: failure to abstain from the use of
alcoholic beverages/illicit drugs; failure to maintain employment and/or verify
employment; and failure to comply with DCS, which has resulted in the
removal of Steger’s child. Appellant’s App. at 91. Following a probation
revocation hearing, the trial court found that Steger had violated the condition
of probation that required him to comply with DCS, revoked his probation, and
sentenced him to twelve months in the Department of Correction. Steger now
appeals.
Discussion and Decision
I. Sufficiency of the Evidence
[6] “Probation is a matter of grace left to trial court discretion, not a right to which
a criminal defendant is entitled.” Jackson v. State, 6 N.E.3d 1040, 1042 (Ind. Ct.
App. 2014) (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. Id.; see also Ind. Code § 35-38-2-3(a). We review a trial
court’s probation violation determination for an abuse of discretion. Id. (citing
Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013)). An abuse of discretion occurs
where the decision is clearly against the logic and effect of the facts and
circumstances or when the trial court misinterprets the law. Id. “In considering
this issue, we note that ‘[a] probation hearing is civil in nature and the State
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need only prove the alleged violations by a preponderance of the evidence.’”
Carpenter v. State, 999 N.E.2d 104, 106 (Ind. Ct. App. 2013) (quoting Cox v.
State, 706 N.E.2d 547, 551 (Ind. 1999)). We consider the evidence most
favorable to the judgment of the trial court without reweighing that evidence or
judging the credibility of witnesses. Id. “If there is substantial evidence of
probative value to support the trial court’s conclusion that a defendant has
violated any terms of probation, we will affirm its decision to revoke
probation.” Id. “[P]roof of a single violation of the conditions of probation is
sufficient to support the decision to revoke probation.” Bussberg v. State, 827
N.E.2d 37, 44 (Ind. Ct. App. 2005), trans. denied.
[7] On appeal, Steger contends that the State presented insufficient evidence to
prove that he violated the condition of probation that required him to comply
with DCS regarding his minor child. We disagree. During his probation
revocation hearing, Tamara Rankin, a case manager for the Madison County
DCS, testified that she had worked with Steger since he was arrested “at the
meth lab” in March 2013. Tr. at 36. Rankin offered,
[W]e attempted an informal adjustment through [DCS] due to failed
drug screens and non-compliance with the recommendations for IOP2
and at regular attendance. We went to Court and he was moved to a
CHINS case and that was being monitored from, I believe it was
2
While Rankin did not define the meaning of these three initials, we note that IOP can refer to an Intensive
Outpatient Drug Treatment Program. A.J. v. Marion Cnty. Office of Family & Children, 881 N.E.2d 706, 710
(Ind. Ct. App. 2008), trans. denied.
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September 2013. In April we asked the Judge to review the case
because of failed drug screens again.
....
[T]he judge ordered [Steger] to [1] provide the medication upon receipt
from the [Veteran’s Administration (“VA”] each month, [2] provide,
provide valid prescriptions for [Rankin] to count and [3] [have] no
more failed drug screens or [DCS would] remove the child . . . .
Id. at 36, 38. Steger was specifically instructed to provide DCS “with the actual
pill bottles when [Rankin] would do the drug screens to confirm the quantities
available.” Id. at 38. Steger did not call when he received his prescriptions nor
did he submit his bottles for pill counts, both of which were a violation of the
order.3 Id. at 39; Appellant’s App. at 59.
[8] Rankin testified that Steger had been placed in a “previous program through
IOP,” Aspire, but that he was terminated for non-compliance with the program.
Tr. at 39. DCS attempted to make it more convenient for Steger to attend
appointments and changed him to home-based services. Id. at 40. Rankin
testified that there were “so many missed appointments that they [DCS] have
3
The importance of the trial court’s order regarding compliance with DCS was explained by Rankin as
follows:
[Steger] is prescribed Hydrocodone as needed. However, he receives 150 pills per month by mail from the
VA. Whether he takes all of the ones from the previous month or not. Given this, he should have them in
his system if he is taking them all the time. If he isn’t taking them, they won’t be there, but he should have a
boatload for me to count.
When he can’t produce bottles for a pill count, we consider that a problem. On 4/8/14, the [judge] ordered
him to give me the March & April bottles with the labels on them, which he did not (“didn’t have them”) and
ordered him to tell me every time he received his medications in the mail, which he has not. He said he
doesn’t take them anymore, which is clearly not true based on his screens. So at this point he is not calling
when he gets them or providing the bottles for pill count, both violating the 4/8/14 court order. (As well as
testing positive for things he is not prescribed . . . .)
Appellant’s App. at 59.
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now discharged [him] from that as well.” Id. “[A]s a result of Mr. Steger’s
failed screens, missed IOP treatment appointments, missed home-based
services, and failure to comply with the Court ordered prescription order, the
child was subsequently removed from the home.” Id. at 40.
[9] The trial court placed into context the importance of Steger complying with the
condition of probation that he comply with DCS as follows:
I was reviewing the probable cause affidavit Mr. Steger that resulted in
your initial arrest and prosecution and conviction here and as I
suspected there were concerns about the methamphetamine labs and
methamphetamine precursors and use and activity with children
involved in the area. And in fact some [of] these complaints came
from neighbors and Child Protective Services got involved early on. In
fact, Child Protective Services is mentioned in the probable cause
affidavit. So there is a very good reason why the Court in its
sentencing order required you to be fully cooperative with Child
Protective Services. It would be hard to make the argument that what
we have heard is an illustration of willing and eager participation with
Child Protective Services. There has been opposition, there has been
defiance, there has been non-cooperation and that is sanctionable and
that’s going to happen today. . . . There is no explanation for your
defiance of and repeated problems with Child Protective Services as
they work with you and they work with Aspire, so forth. And for that
you will be sanctioned.
Id. at 49-51.
[10] “[P]roof of a single violation of the conditions of probation is sufficient to
support the decision to revoke probation.” Bussberg, 827 N.E.2d at 44. Here,
the State presented sufficient evidence to prove that Steger violated the terms of
probation. The trial court did not abuse its discretion when it revoked Steger’s
probation for failing to comply with DCS, a condition of his probation.
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II. Correction of Written Orders
[11] Steger also requests that we remand with instructions to correct the Sanctions
Order, the Abstract of Judgment, and the CCS (collectively, “the Written
Orders”) to reflect the trial judge’s stated reasons for revoking Steger’s
probation. When oral and written statements conflict, we examine them
together to discern the intent of the trial court. Walker v. State, 932 N.E.2d 733,
738 (Ind. Ct. App. 2010). We may remand the case for correction of clerical
errors if the trial court’s intent is unambiguous. Id. (citing Willey v. State, 712
N.E.2d 434, 445 n.8 (Ind. 1999) (“Based on the unambiguous nature of the trial
court's oral sentencing pronouncement, we conclude that the Abstract of
Judgment and Sentencing Order contain clerical errors and remand this case for
correction of those errors.”)).
[12] At the probation revocation hearing, evidence was introduced that Steger
submitted to drug screens. “[A] combination of different drugs were found
within those eleven (11) screens,” including amphetamines. Tr. at 20. Steger
had been prescribed numerous drugs. Id. While he did not have a prescription
for amphetamines, Steger maintained that he took an over-the-counter
medication that contained amphetamine. Id. at 20, 41-42. Regarding
employment, Steger testified that he had worked for the same company for
thirteen years, some of that time being within his probationary period. Id. at
10-11. He admitted, however, that he had worked only the occasional
temporary job during the seven-month period prior to his probation revocation
hearing. Id. at 46-47.
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[13] Here, the Written Orders set forth the following three reasons for revoking
Steger’s probation:
This matter is before the Court for Evidentiary Hearing on Notice of
Violation of Probation filed on 7-2-14. State appears by Tanisha
Grooms. Defendant appears in person and by counsel, Robert Crane.
Probation Department appears by Sharon Adams.
Evidence heard and concluded. Court finds Defendant violated the
conditions of probation as follows: 1) failed to abstain from the use of
alcoholic beverages/illicit drugs during the period of probation during
9/30/13 and 6/16/14; 2) failed to comply with [t]he Department of
Child Services, which resulted in the removal of his child; and 3) failed
to maintain and/or verify employment.
Appellant’s App. at 4 (CCS), 15 (Abstract of Judgment),4 17 (Sanctions Order).
In his oral statement, however, the trial judge specifically found only one
reason for revoking Steger’s probation – Steger’s failure to comply with the
requirements of DCS. Appellant’s App. at 107.
[14] The trial court reasoned:
I’m convinced we don’t have a sufficient basis on, on the testing [of
drugs]. Much of the stuff there is valid scripts for. And amphetamine
is a very amorphous kind of concept amphetamines [sic]. And, but I
am very concerned about the Court’s order to cooperate with and
comply with all of the requirements of the Department of Child
Services. When the State rested, subject to rebuttal, they have a pretty
good case with the proposition that Mr. Steger had not been
cooperating with the department . . .
4
We note that the Abstract of Judgment omitted some of the third reason, as it stated only “and 3) failed to
mainta.” Appellant’s App. at 15. It seems reasonable to conclude that the language pertaining to “failed to
maintain and/or verify employment,” was mistakenly omitted.
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Tr. at 43. Later, the trial court also specifically found, “Thirteen (13) years of
continuous employment, several months, but that would not be the basis for a
revocation.” Id. at 46.
[15] Given the unambiguous nature of the trial judge’s stated reasons for revoking
Steger’s probation, i.e., exclusively for failing to comply with DCS, we
conclude that the Written Orders improperly indicate that Steger’s probation
was revoked, in part, due to his failure to abstain from the use of illicit drugs
and his failure to maintain and/or verify employment. We therefore remand
with instructions that the trial court correct the clerical errors by removing these
two alleged violations from the Written Orders and from any other pertinent
documents.
[16] Affirmed and remanded with instructions.
Vaidik, C.J., and Bradford, J., concur.
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Donald Ray Steger v. State of Indiana (mem. dec.)
Combined Opinion