MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any Aug 20 2015, 8:43 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
Donald C. Swanson, Jr. Gregory F. Zoeller
Deputy Public Defender Attorney General of Indiana
Fort Wayne, Indiana
Angela N. Sanchez
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Daquion L. Shears, August 20, 2015
Appellant-Defendant, Court of Appeals Case No.
02A05-1501-CR-31
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable John F. Surbeck,
Appellee-Plaintiff Judge
Trial Court Cause No.
02D04-1402-FD-170
Crone, Judge.
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Case Summary
[1] Daquion L. Shears appeals the trial court’s revocation of his probation. Shears
claims that he was not afforded adequate due process during the revocation
hearing and that the evidence was insufficient to support the revocation.
Finding that he was afforded adequate due process and that the evidence was
sufficient, we affirm.
Facts and Procedural History
[2] On July 3, 2014, Shears pled guilty to class D felony criminal recklessness and
class A misdemeanor carrying a handgun without a license in the current case,
number 02D04-1402-FD-170 (“Cause FD-170”). As part of the partially-
suspended two-year sentence imposed for those crimes, Shears was ordered to
serve a one-year term of probation beginning on October 8, 2014. On October
17, 2014, the State filed a petition for probation revocation alleging that Shears
battered the mother of his child and failed to report for supervision as
instructed. The State subsequently filed an amended petition for probation
revocation on November 7, 2014, alleging that Shears also committed the
offenses of level 6 felony auto theft, class B misdemeanor false informing, class
B misdemeanor possession of marijuana, and class C misdemeanor operating a
vehicle without ever receiving a license. Formal criminal charges were filed for
those crimes on November 13, 2014, under cause number 02D06-1411-F6-408
(“Cause F6-408”).
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[3] Cause F6-408 proceeded to jury trial on January 6, 2015. The jury found
Shears not guilty of auto theft, but guilty of false informing and operating a
vehicle without ever receiving a license. The possession of marijuana charge
was dismissed. Immediately following the jury trial, the trial court held a
consolidated hearing to determine sentencing in Cause F6-408 and probation
revocation in Cause FD-170. Upon motion by the State, and without objection
from Shears, the trial court took judicial notice of Shears’s convictions in Cause
F6-408 and incorporated all the evidence from the jury trial into the revocation
proceedings. Based upon the incorporated evidence, the trial court concluded
that Shears violated his probation and ordered him to serve one year of his
previously suspended sentence in Cause FD-170. Shears appeals the revocation
of his probation.
Discussion and Decision
[4] “Probation is a matter of grace left to trial court discretion, not a right to which
a criminal defendant is entitled.” Prewitt v. State, 878 N.E.2d 184, 188 (Ind.
2007). It is within the trial court’s discretion to determine the conditions of
probation and to revoke probation if those conditions are violated. Heaton v.
State, 984 N.E.2d 614, 616 (Ind. 2013). We review a trial court’s decision to
revoke probation for an abuse of discretion. Ripps v. State, 968 N.E.2d 323, 326
(Ind. Ct. App. 2012). An abuse of discretion occurs when the court’s decision is
clearly against the logic and effect of the facts and circumstances before the
court. Id. We neither reweigh evidence nor reassess witness credibility, and we
consider only the evidence favorable to the trial court’s judgment. Id. If there is
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substantial evidence to support the trial court’s decision that a probationer has
violated any terms of probation, we will affirm the decision to revoke
probation. Id.
Section 1 – Shears was afforded adequate due process.
[5] We first address Shears’s claim that he was denied procedural due process
during his revocation hearing. Probation revocation is a two-step process.
Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008). First, the trial court must
make a factual determination that a violation of a condition of probation
actually occurred. Id. If a violation is proven, then the trial court must
determine if the violation warrants revocation of the probation. Id. Although
probationers are not entitled to the full spectrum of constitutional rights
afforded to a defendant in a criminal trial, there remain some due process limits
on the revocation of probation. Id. The minimum requirements of due
process that are afforded to a probationer at a revocation hearing include: (a)
written notice of the claimed violations of probation; (b) disclosure of the
evidence against him; (c) an opportunity to be heard and present evidence; (d)
the right to confront and cross-examine adverse witnesses; and (e) a neutral and
detached hearing body. Id.; see also Ind. Code § 35-38-2-3(f) (providing that,
absent waiver, a probationer is entitled to a revocation hearing in open court,
confrontation, cross-examination, and representation by counsel).
[6] Shears acknowledges that he received written notice of his alleged violations of
probation, but claims that he was not afforded the additional due process
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protections to which he was entitled. First, we note that, upon motion by the
State at the outset of the consolidated sentencing and revocation hearing, and
without any objection from Shears, the trial court took judicial notice of and
incorporated all of the evidence from its prior proceeding in which Shears was
found not guilty of level 6 felony auto theft, and guilty of class B misdemeanor
false informing and class C misdemeanor operating a vehicle without ever
receiving a license. We have held that this procedure does not violate due
process. See Lightcap v. State, 863 N.E.2d 907, 910 (Ind. Ct. App. 2007)
(revocation court may incorporate and admit testimony and evidence presented
at prior criminal proceeding before same court); Bane v. State, 579 N.E.2d 1339,
1341-42 (Ind. Ct. App. 1991) (revocation court may take judicial notice of the
outcome, i.e., a conviction, in a proceeding that had previously been before the
same court), trans. denied (1992).
[7] Moreover, when a probationer admits to the probation violation, the procedural
due process safeguards listed above and an evidentiary hearing are not
necessary, and the court can proceed to the second step of the inquiry and
determine whether the violation warrants revocation. Woods, 892 N.E.2d at
640. But, “even a probationer who admits the allegations against him must still
be given an opportunity to offer mitigating evidence suggesting that the
violation does not warrant revocation.” Id. (citing United States v. Holland, 850
F.2d 1048, 1051 (5th Cir. 1988)).
[8] Our review of the record reveals that Shears both admitted to violating his
probation and was given the opportunity to offer mitigating evidence. After the
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trial court read the allegations of the revocation petition regarding Shears’s
commission of the new criminal offenses on the record and incorporated the
evidence from the prior proceeding, defense counsel responded, “He was
acquitted of the Felony. He was indeed convicted of the two (2)
Misdemeanors, so I guess I’ll leave it in the Court’s discretion.” Tr. at 125-26.
[9] We view defense counsel’s statement as an admission by Shears that he violated
the conditions of his probation by committing, at the very least, two new
crimes, and therefore the procedural due process safeguards noted above were
not necessary and the trial court could proceed to the second step of the analysis
and determine if the violation warranted revocation. See Parker v. State, 676
N.E.2d 1083, 1086 (Ind. Ct. App. 1997) (probation revocation hearing is a civil
proceeding, and a probationer is bound by the admissions and actions of his
attorney, just as any civil litigant would be). We also view counsel’s statement
as a knowing decision by Shears to forgo offering mitigating evidence regarding
his commission of these crimes, despite the opportunity to do so, and to instead
acquiesce to the discretion of the trial court regarding whether his violations
warranted revocation. Further, as we will discuss more fully below, when the
trial court proceeded to consider the incorporated evidence and find by a
preponderance of that evidence that Shears also committed auto theft, Shears
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again offered no mitigating evidence suggesting that revocation was
unwarranted based upon his commission of that crime. 1
[10] Although Shears makes much ado about the informality of his revocation
hearing, “[j]udicial economy mandates that some flexibility be taken in the
probation revocation proceedings.” Lightcap, 863 N.E.2d at 911. Indeed, due
process “‘is not so rigid as to require that the significant interests in informality,
flexibility, and economy must always be sacrificed.’” Id. (quoting Gagnon v.
Scarpelli, 411 U.S. 778, 788 (1973)). Here, Shears was afforded the full array of
due process rights at his criminal trial and, during the consolidated proceeding
that followed immediately thereafter, he admitted to the violation of his
probation and acquiesced to the procedures employed by the trial court. Under
the circumstances, we cannot say that Shears was denied procedural due
process.
Section 2 – The State presented sufficient evidence to support
the probation revocation.
[11] Shears maintains that the evidence was insufficient to support the trial court’s
revocation of his probation. Because a probation revocation is civil in nature,
the State need only prove the alleged probation violation by a preponderance of
the evidence. Holmes v. State, 923 N.E.2d 479, 485 (Ind. Ct. App. 2010). In
determining whether sufficient evidence supports a probation revocation, we
1
We note that Shears makes no attempt on appeal to explain any of his probation violations or to point to
evidence in mitigation.
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apply the same standard as with any other sufficiency matter. Martin v. State,
813 N.E.2d 388, 389 (Ind. Ct. App. 2004). We consider only the evidence most
favorable to the State, along with the reasonable inferences to be drawn
therefrom. Id. If a person on probation commits another crime, the trial court
may revoke probation. See Ind. Code § 35-38-2-1(b).
[12] It is well settled that the State need not demonstrate that the probationer was
convicted of a new crime. Whatley v. State, 847 N.E.2d 1007, 1010 (Ind. Ct.
App. 2006). Rather, the State need only demonstrate the commission of that
new crime by a preponderance of the evidence. See Heaton, 984 N.E.2d 614,
617 (Ind. 2013). The evidence presented at the jury trial and incorporated into
the revocation hearing indicated that police found Shears in possession of a
vehicle that had been reported stolen. Loren Allen, the owner of the vehicle,
testified that Shears took her car without her permission and that Shears
deprived her of the use of her car for more than one day. Thus, although
Shears was acquitted of auto theft pursuant to a beyond-a-reasonable-doubt
standard applicable during the jury trial, the incorporated evidence was
sufficient to support the trial court’s conclusion that Shears committed the
offense pursuant to a preponderance-of-the-evidence standard applicable in
probation revocation proceedings. 2 Further, the incorporated evidence of his
convictions for the two misdemeanor offenses beyond a reasonable doubt,
2
A person who knowingly or intentionally exerts unauthorized control over the motor vehicle of another
person, with intent to deprive the owner of the vehicle’s value or use commits level 6 felony auto theft. Ind.
Code § 35-43-4-2.5.
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coupled with his admission to committing the same, is more than sufficient to
support the revocation of his probation.
[13] Shears argues that the State failed to “present any evidence” that he violated his
probation by committing new crimes because the State failed to introduce the
amended petition for probation revocation or the specific conditions of his
probation into evidence at the revocation hearing. Appellant’s Br. at 7. We
note that the trial court read the allegations of the amended revocation petition
on the record at the outset of the hearing, and Shears cites no authority, and we
are unaware of any, that requires more. Also, the condition that a defendant on
probation refrain from criminal conduct is imposed by law, even in the absence
of any express condition of probation imposed by the court. Lucas v. State, 501
N.E.2d 480, 481 (Ind. Ct. App. 1986). Shears’s arguments are unsupported and
unpersuasive. The State presented sufficient evidence to support the trial
court’s revocation of probation. The trial court’s revocation of Shears’s
probation is affirmed.
[14] Affirmed.
May, J., and Bradford, J., concur.
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