MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Mar 30 2016, 9:06 am
this Memorandum Decision shall not be CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
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
Jennifer A. Joas Gregory F. Zoeller
Madison, Indiana Attorney General of Indiana
Ian McLean
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Denny L. Brown, March 30, 2016
Appellant-Defendant, Court of Appeals Case No.
15A04-1507-CR-925
v. Appeal from the
Dearborn Circuit Court
State of Indiana, The Honorable
Appellee-Plaintiff. James D. Humphrey, Judge
Trial Court Cause No.
15C01-1212-FB-69
Kirsch, Judge.
[1] Denny L. Brown (“Brown”) appeals the trial court’s decision to revoke his
probation, raising the followed restated issue: whether, after Brown admitted to
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having violated probation in several respects, the trial court abused its discretion
when it revoked Brown’s probation and ordered him to serve part of his
previously-suspended sentence.
[2] We affirm.
Facts and Procedural History
[3] In October 2012, while Brown was on probation for a 2011 Ohio breaking and
entering conviction, Brown entered his sister’s Guilford, Indiana home without
permission and took items of personal property from her. In December 2012,
the State charged Brown with Class B felony burglary, for the offenses at his
sister’s home. In September 2013, Brown entered into a plea agreement, in
which he pleaded guilty to Class D felony theft, and the State agreed to dismiss
the burglary charge. He was sentenced to three years in the Indiana
Department of Correction with two years suspended. The plea agreement
provided that Brown was to obey all conditions of probation, which included
that Brown not commit another criminal offense, not consume controlled
substances unless prescribed by a physician, and allow testing by the probation
department for the consumption of drugs. Appellant’s App. at 79-85.
[4] Brown served his executed time on the theft conviction and was released to
probation on December 5, 2013, to begin his two years of probation. Brown
desired to return to Ohio, where he had been living, so probation supervision
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was transferred to the Ohio Adult Parole Authority (“Ohio Parole”). 1 In
October 2014, Brown’s probation officer in Indiana, Steve Miller (“Miller”),
received a violation report from Ohio Parole. Based on this report, the State
filed a Request for Probation Violation Hearing (“petition to revoke”) at the end
of October 2014, alleging that Brown had committed a new offense of receiving
stolen property, tested positive for using controlled substances, and that he
failed to complete a substance abuse program. Miller received a request from
Ohio Parole to withdraw the charged violations, in order to allow Ohio Parole
to work with Brown in an effort to help him complete his substance abuse
counseling program. In November 2014, the probation department dismissed
the petition to revoke without prejudice.
[5] In spring 2015, Miller received another report from Ohio Parole stating that
Brown had been convicted of the previously-charged receiving stolen property
offense as an attempt, had been arrested on another charge, had failed more
drug screens in October 2014 and April 2015, and was not compliant with his
substance abuse counseling program. On May 12, 2015, the State filed a
petition to revoke or modify Brown’s probation, alleging that Brown had been
convicted of attempted theft, repeatedly tested positive for controlled
substances, and failed to complete a substance abuse program. About a month
later, in June 2015, the State filed an amended petition to revoke, alleging that
Brown had been charged with having committed another criminal offense in
1
Ohio Adult Parole Authority also ordered Brown to complete an alcoholism council program.
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January 2015. Appellant’s App. at 101-02. At a June 22, 2015 hearing, Brown
admitted to the charged violations, including having committed new criminal
offenses, failing to complete substance abuse counseling, and failing drug tests
on June 27, 2014, July 2, 2014, and October 1, 2014. Tr. at 8-9. The matter
proceeded directly to disposition.
[6] At the hearing, Brown admitted the alleged violations. Id. However, he
testified that he had taken the medications pursuant to prescriptions, for which
he had “the paperwork,” and he noted to the trial court that he was not on
“street drugs.” Id. at 13, 15. Brown explained that he did not complete the
substance abuse program because it moved locations. He told the trial court he
was an expectant father and was employed before being incarcerated, and he
asked the trial court to extend his probationary period and not “put [him] in
prison.” Id. at 13. Miller testified that Brown’s evidence regarding
prescriptions did not “square up” with any of the failed drug screens. Id. at 19.
He opined that “Ohio Parole has given Mr. Brown every opportunity to avoid
this situation,” but that Brown had made no efforts to change his behavior. Id.
at 20. A record from Addiction Services Council, where Brown had attended
counseling sessions, was admitted into evidence and reflected that Brown
missed multiple appointments and his behavior failed to “uphold[] treatment
expectations of the agency.” State’s Ex. 1; Tr. at 23. Miller noted that Brown
had an “extensive” criminal history in Ohio, as indicated in his pre-sentence
investigation report, and Miller recommended that Brown be ordered to serve
the previously-suspended two years of his sentence. Tr. at 20.
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[7] After hearing the evidence, the trial court revoked Brown’s probation and
ordered him to serve one year and 270 days of his two-year suspended
sentence.2 Brown now appeals.
Discussion and Decision
[8] Brown argues that the trial court abused its discretion when it revoked his
probation and ordered him to serve one year and 270 days of his previously-
suspended two-year sentence. The decision to revoke probation is within the
sole discretion of the trial court. Woods v. State, 892 N.E.2d 637, 639 (Ind.
2008). We review a trial court’s decision to revoke probation for an abuse of
discretion. Whatley v. State, 847 N.E.2d 1007, 1009 (Ind. Ct. App. 2006). “An
abuse of discretion occurs if the decision is against the logic and effect of the
facts and circumstances before the court.” Id.
[9] A probation revocation hearing is in the nature of a civil proceeding. Marsh v.
State, 818 N.E.2d 143, 148 (Ind. Ct. App. 2004). Therefore, an alleged
violation of probation only has to be proven by a preponderance of the
evidence. Id. When we review the determination that a probation violation has
occurred, we neither reweigh the evidence nor reassess witness credibility. Id.
Rather, if there is substantial evidence of probative value to support the trial
court’s decision that a defendant has violated any terms of probation, the
2
The transcript reflects that the trial court concluded the hearing and went off the record, but reopened it to
recognize that, as Brown was leaving the courtroom, he uttered an obscenity. The trial court advised that
such behavior would not be tolerated and would result in contempt if it happened again.
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reviewing court will affirm its decision to revoke probation. Woods, 892 N.E.2d
at 639-40.
[10] Probation revocation is a two-step process. Cox v. State, 850 N.E.2d 485, 488
(Ind. Ct. App. 2006). First, the court must make a factual determination that a
violation of a condition of probation actually has occurred. Id. Second, if a
violation is proven, then the trial court must determine if the violation warrants
revocation of the probation. Id. In making the determination of whether the
violation warrants revocation, the probationer must be given an opportunity to
present evidence that explains and mitigates his violation. Id.; see also Sparks v.
State, 983 N.E.2d 221, 225 (Ind. Ct. App. 2013) (in revocation cases,
probationer is entitled to present mitigating evidence to demonstrate that
violation does not warrant revocation), aff’d on reh’g.
[11] Here, at the fact-finding hearing on the probation violation petition, Brown
admitted to the violations, which included failed drug screens, a conviction for
a new offense, and having been charged with other offenses. Tr. at 8. Brown
argues, however, that “his violation did not warrant a revocation and [] the
evidence . . . explains and mitigates his violation.” Appellant’s Br. at 7. At the
hearing, Brown stated, among other things, that he had completed
approximately seven months of his probation prior to his positive drug screen
and had completed about four months of substance abuse counseling. He
acknowledged “a brief lapse” in counseling but asserted it was because the
program had moved. Tr. at 10-11; Appellant’s Br. at 7. He testified that his
failed drug tests had to do with prescription narcotics, and he presented
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prescription records relative to that claim. He told the trial court that he had
been employed at White Castle and was expecting his first child. For these
reasons, he asked the trial court not to revoke his probation. The State
presented evidence that Brown’s prescriptions did not “square up” or correlate
to his failed drug screens, and it presented documentation from the Ohio
substance abuse program that Brown had missed appointments and was not
properly participating. Tr. at 19. Thus, although Brown provided explanations
and reasons for his failure to complete the drug counseling and the failed drug
screens, the State presented evidence of repeated noncompliance. The trial
court weighs the evidence and assesses witness credibility; we cannot. Woods,
892 N.E.2d at 639. Considering the evidence most favorable to the trial court’s
judgment, we find that, here, there was substantial evidence of probative value
supporting the revocation, and thus, the trial court did not abuse its discretion
when it revoked Brown’s probation.
[12] The next issue is whether the trial court abused its discretion by ordering Brown
to serve one year and 270 days of his suspended-two-year sentence. Pursuant to
Indiana Code section 35-38-2-3, a trial court has three options if a defendant
violates probation. It may: (1) continue the defendant’s probation with no
modifications to the probationary conditions; (2) extend the probationary
period for not more than one year beyond the original probationary period; or
(3) order execution of all or part of the suspended sentence. Ind. Code § 35-38-
2-3(h); Williams v. State, 883 N.E.2d 192, 195 (Ind. Ct. App. 2008). We review
a trial court’s sentencing decision in probation revocation proceedings for an
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abuse of discretion. Cox, 850 N.E.2d at 489 (citing Sanders v. State, 825 N.E.2d
952, 956 (Ind. Ct. App. 2005), trans. denied). An abuse of discretion occurs if
the trial court’s decision is against the logic and effect of the facts and
circumstances before the court. Abernathy v. State, 852 N.E.2d 1016, 1020 (Ind.
Ct. App. 2006).
[13] Here, the trial court ordered execution of part of the two-year suspended
sentence, which it was authorized to do under Indiana Code section 35-38-2-
3(h). Specifically, the court ordered that “one year and two hundred seventy
days will be revoked[.]” Tr. at 24. In reaching that determination, the trial
court considered Brown’s juvenile and adult criminal history, which included
two adult felonies, as well as six probation violations. It also considered that
Brown was convicted of a new offense while on probation in Ohio, he failed
drug tests, and “he has not taken an opportunity to seek and comply with the
drug treatment program.” Id. In mitigation, the trial court considered that
Brown admitted to the violations. Brown urges on appeal that he “had served
twenty-three days” at the time of the probation violation hearing, and “[t]his
was a sufficient amount of time served for his violation.” Appellant’s Br. at 8.
However, “ultimately it is the trial court’s discretion as to what sanction to
impose under [Indiana Code section 35-38-2-3].” Abernathy, 852 N.E.2d at
1022. Based on the record before us, we conclude that Brown has not shown
that the trial court’s decision to require Brown to serve one year and 270 days of
his two-year suspended sentence was an abuse of discretion.
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[14] Affirmed.3
[15] Mathias, J., and Brown, J., concur.
3
At the probation revocation hearing, the trial court stated, “I’m going to order that one year and 270 days
will be revoked, probation will terminate.” Tr. at 24. The State asserts that, based on its calculations of the
time remaining on Brown’s sentence, the trial court “incorrectly releas[ed] Brown from liability for 56 days of
his original sentence” when it terminated probation following execution of the one year and 270 days, and it
thereby “seems to depart from the plea agreement[.]” Appellee’s Br. at 14. The State asks us to remand with
instructions for the trial court “to consider the disposition of the remaining 56 days of Brown’s sentence.” Id.
We decline this request, initially noting that the State voiced no objection or opposition to the trial court
regarding its sentencing and, thereby, waived the issue for appeal. Marsh v. State, 818 N.E.2d 143, 145 (Ind.
Ct. App. 2004). Waiver notwithstanding, we find remand is not necessary. Here, even if, as the State asserts,
the trial court’s sentencing decision released Brown from some portion of the sentence provided in his plea
agreement, a trial court is not precluded from imposing a sentence that varies from the terms of the plea
agreement. See Abernathy v. State, 852 N.E.2d 1016, 1022 (Ind. Ct. App. 2006) (trial court did not abuse its
discretion by imposing previously-suspended sentence, even though it resulted in total period of incarceration
that exceeded plea agreement’s cap on executed time); Cox v. State, 850 N.E.2d 485, 491 (Ind. Ct. App. 2006)
(same). We thus reject the State’s claim that the trial court “depart[ed] from the plea agreement” and that
remand is necessary. Any inconsistency between the imposed sentence and the plea agreement reflects the
trial court’s decision of what sanction to impose for a defendant’s probation violation(s), which is a matter
left to the trial court’s discretion. See Abernathy, 852 N.E.2d at 1021.
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Denny L. Brown v. State of Indiana (mem. dec.)
Combined Opinion