MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any
Jun 27 2018, 10:19 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
R. Patrick Magrath Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Magrath, LLP Attorney General of Indiana
Madison, Indiana Henry A. Flores, Jr.
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Joseph Harold Driver, Jr., June 27, 2018
Appellant-Defendant, Court of Appeals Case No.
36A04-1712-CR-2995
v. Appeal from the Jackson Circuit
Court
State of Indiana, The Honorable Chris D. Monroe,
Appellee-Plaintiff. Senior Judge
Trial Court Cause No.
36C01-1106-FB-17
Brown, Judge.
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[1] Joseph Harold Driver, Jr., appeals his sentence following the revocation of his
probation. Driver raises one issue which we revise and restate as whether the
trial court abused its discretion in ordering him to serve the remainder of his
previously suspended sentence. We affirm.
Facts and Procedural History
[2] On June 22, 2011, the State charged Driver with attempted dealing in
methamphetamine as a class B felony. On September 22, 2011, he pled guilty.
On October 18, 2011, the court accepted Driver’s guilty plea and ordered that
he “be imprisoned for 8 years in the appropriate correctional facility, 5 years
suspended, placed on supervised probation for 5 years” and that he receive “132
days credit, 132 days credit time.” Appellant’s Appendix Volume 2 at 51. At
some point, Driver’s probation was transferred from Jackson County to the
state of Tennessee.
[3] On August 2, 2017, the State filed a petition to revoke probation and request for
a warrant, which alleged that, on or about July 20, 2017, Driver had committed
two counts of domestic assault and a count of unlawful possession of a weapon
by a convicted felon “as charged in Rutherford County, Tennessee under cause
#F-77554, a direct violation of Condition #2 in his Order of Probation.” 1 Id. at
61.
1
The Appellant’s Appendix contains the court’s order of probation, which is addressed to “Joe H. Driver Jr.”
at Murfreesboro, Tennessee and which states, under the heading “Standard Conditions of Probation,” “2.
You must not commit another criminal offense. If you do commit another criminal offense, your probation
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[4] On December 6, 2017, the court held a hearing. When it asked how Driver
wished to proceed, the following exchange occurred:
[Driver’s Counsel]: Your Honor, I was told that the prior
hearing where [Driver] was Pro Se, that the [c]ourt had withdrew
the sanctions but left the admissions . . .
THE COURT: Well, that’s my recollection, but sometimes
when I appoint counsel the [d]efendant may want to do more.
As I advised him at the hearing the allegation of the violation is
by a criminal charge and the [c]ourt’s understanding is that he
pled guilty to that charge and so . . . as I understood [Driver’s]
objection from the [c]ourt’s previous, a couple hearings ago, was
the disposition but not the finding of a violation.
[Driver’s Counsel]: He still is admitting to the allegation and . .
[.]
THE COURT: Okay.
[Driver’s Counsel]: [. . .] arguing the sanctions.
Transcript Volume 1 at 3.
[5] Probation Officer Jacob Finley testified Tennessee submitted an annual
progress report regarding Driver’s probation “usually about February” for the
first four years of his supervision which said that Driver was in compliance but
may be revoked.” Appellant’s Appendix Volume 2 at 57. Under the heading of “Special Conditions,” the
order states, “26. You shall submit to a responsible drug and alcohol abuse program for evaluation by 3-1-
2013. If the evaluation reveals a need for therapy, you must complete that program as established and pay all
costs associated therein.” Id. at 59. The initials “JD” appear in the space provided next to all the conditions
imposed by the court.
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that in “January of 2017 we started to receive information that [Driver had]
picked up some new arrests in November and December of 2016.” Id. at 13-14.
[6] Driver testified that he had a leg and foot injury and back issues and then
stated: “My health, other than – My health’s all right pretty much.” Id. at 5.
He testified that he received one year probation for the “gun charge” in the
“felony case” in Tennessee and stated, when asked if that was the only case he
had in Tennessee, that “[t]he other two (2) was [sic] misdemeanors. I got drunk
on some moonshine and, you know, I got into it with my wife and daughter
and, you know, at the time and they gave me just a domestic on it.” Id. at 6.
When asked again if any other charges were filed in Tennessee, he answered,
“[n]o. Just a Reckless Driving,” and added, “[t]hey just put me on like a three
(3) month probation thing, you know, on misdemeanor probation. ‘Cause I’m
on misdemeanor and felony probation down there.” Id. at 7. He agreed that he
had a substance abuse problem and stated, “I mean, I drank a lot, yeah, every
now and then. That’s my big problem, I drink, you know, and that’s what gets
me in trouble.” Id.
[7] According to his testimony during cross-examination, Driver pled guilty to the
“Reckless Driving case” and to the “other case . . . [involving] Domestic
Assault, Domestic Assault, Two Counts, and Unlawful Possession of a
Weapon.” Id. at 8. He responded he received at least two DUI charges in
Tennessee and a charge of having “a weapon inside of [a jail] facility” when he
“went into the jail . . . and . . . was drunk and . . . took it off and showed it to
them” that, “they threw . . . out of [c]ourt.” Id. at 10. He indicated that he
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“caught a DUI and Reckless Driving” in Kentucky for “flying down the
interstate too fast,” answered affirmatively when asked if he had “a Marijuana
in Tennessee” in 2009, and stated “I mean, I’ve had a little trouble with drugs
too.” Id. at 11. When asked if he also had probation violations, he answered:
“Yeah. I mean, down there every time you get, I mean, you ain’t got to be
convicted down there, especially on misdemeanor. They’ll violate you right off
the top right there. You going to get a violation.” Id.
[8] Driver indicated that he was still married to his wife, C.D., at which point the
court asked if she was the one he battered in Tennessee and he responded, “I’ve
got the charge for that, but I mean, I didn’t touch her.” Id. at 16. The following
exchange occurred:
THE COURT: So you didn’t really do it but you pled guilty
anyway?
[Driver]: Yeah, I pled guilty to it, yes.
THE COURT: So you lied to somebody. I don’t know how
they do it in Tennessee but do they swear you in and have you
agree that you committed the offense?
[Driver]: Huh?
THE COURT: I don’t know how they do it in Tennessee, but in
Indiana we require that someone be placed under oath, swear
them in, and then they testify and they admit that they
committed the crime. Is that what they do in Tennessee?
[Driver]: Well, down there I just signed a plea but they didn’t
have no –
THE COURT: Okay. So you signed a document.
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[Driver]: Yeah.
THE COURT: Is that what you’re saying?
[Driver]: I mean, yeah. I mean, she was supposed to. And me, I
signed it too right there, I mean, but I just, I just took the charge,
you know.
THE COURT: All right. Well, you, you’re doing something
similar to what you’ve done before. You kind of go on and
that’s, you know, not a big problem but – It sounds to me like
you signed a Plea Agreement that said you agree you committed
the crime and now you’re kind of hedging on that. I think you
made some kind of comment like, “Well, you know, yeah, I hit
her before but, you know, it’s only every so often or something.”
[Driver]: Well no, ‘cause I ain’t never hit my wife.
THE COURT: Never hit her?
[Driver]: I never hauled off and hit her, not one time.
THE COURT: Did you ever push her?
[Driver]: Well yeah. I’ve grabbed her arms to contain her when
she’d come at me, but that’s about all I’ve done.
THE COURT: Okay. You know that’s a Battery.
[Driver]: Yeah, I know.
THE COURT: That’s illegal.
[Driver]: I know.
Id. at 16-17. Driver indicated that he violated two protection orders with his
wife when asked by the court about his presentence report. When the court
inquired into his alcohol usage, the following exchange occurred:
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THE COURT: So why do you keep drinking?
[Driver]: I wish I could just throw it down there.
*****
THE COURT: Why don’t you stop?
[Driver]: I don’t know why I quit drinking, I mean, keep
drinking.
THE COURT: So that’s a problem because if you don’t know
why, you will not stop. Obviously you haven’t stopped. And so
if you still drink, first of all that’s a violation of the condition of
probation here. Okay?
[Driver]: Okay.
THE COURT: . . . So it sounds to me like it’s likely, the first
choice you have to make is are you going to drink or not. And
you choose to drink. Then under the influence you make other
poor choices. . . . So, you don’t get it yet. All right. You haven’t
apparently even given your drinking any significant
consideration. And based upon your own testimony here today
it’s your drinking that gets you in trouble. Is that right?
[Driver]: Yes, sir. I’ve been, I’m, I’ve been thinking, I mean, the
whole time I’ve been in jail, you know, about, you know, about
my drinking. I’m going to quit. It pays not to be drinking
(indiscernible).
Id. at 18-19. When asked if he was saying that he was going to stop drinking
now, Driver stated he was going to try his best and, when the court asked for
specifics, he described his daughter’s pregnancy and wife’s attempted suicide.
[9] On December 12, 2017, the court entered an order revoking Driver’s probation,
finding that Driver acknowledged under oath he had violated the terms of his
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supervised probation as alleged in the State’s petition to revoke probation and
ordered the “suspended sentence of five (5) years into execution to be served in
the appropriate penal facility.” Appellant’s Appendix Volume 2 at 70.
Discussion
[10] The issue is whether the court abused its discretion in ordering Driver to serve
the remainder of his previously suspended sentence. Driver does not challenge
the finding that he violated his probation. Rather, he argues, in effect, that his
ready admission to the present violation and the completion of “almost all of
his suspended sentence without any violation,” dictate that the trial court
abused its discretion by revoking his entire suspended sentence. Appellant’s
Brief at 12. Specifically, he contends that “[w]ith a short period o[f] probation
left to complete, [he] made a mistake,” “received new charges,” and “admitted
to his mistake as soon as was able to.” Id. He contends that the court’s order to
serve the balance of his suspended sentence came “the day after he was
scheduled to be terminated from probation.” Id. at 9. He also points to several
medical, financial, and family circumstances to explain and mitigate the
violation, and argues that “[he] and his dependents are suffering undue
hardship as a result of the . . . revocation of his suspended sentence. The
physical and mental wellbeing of, [sic] not only Driver, is substantial[ly]
impacted by the trial court’s error.” Id. at 11-12.
[11] The State argues that Driver admitted to consuming alcohol and being
convicted of reckless driving while on probation, both violations of his
probation, that the court had discretion to order him to serve his previously
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suspended sentence, and that he has essentially invited this Court to reweigh his
admitted violations. The State further contends that his family circumstances
do not mandate a finding of undue hardship, his physical condition is not
deserving of mitigation, and his claim of mental illness is “at best speculative”
given that no evidence has “established any nexus between [Driver’s] conduct
and any mental health issue.” Appellee’s Brief at 9.
[12] Ind. Code § 35-38-2-3(h) sets forth a trial court’s sentencing options if the trial
court finds a probation violation and provides:
If the court finds that the person has violated a condition at any
time before termination of the period, and the petition to revoke is
filed within the probationary period, the court may impose one (1)
or more of the following sanctions:
(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 (1) year beyond the original
probationary period.
(3) Order execution of all or part of the sentence
that was suspended at the time of initial
sentencing.
[13] The Indiana Supreme Court has held that trial court probation violation
determinations and sanctions are reviewed using the abuse of discretion
standard. Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013) (citing Prewitt v.
State, 878 N.E.2d 184, 188 (Ind. 2007)). The Court explained that “[o]nce a
trial court has exercised its grace by ordering probation rather than
incarceration, the judge should have considerable leeway in deciding how to
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proceed” and that “[i]f this discretion were not afforded to trial courts and
sentences were scrutinized too severely on appeal, trial judges might be less
inclined to order probation to future defendants.” Prewitt, 878 N.E.2d at 188.
An abuse of discretion occurs where the decision is clearly against the logic and
effect of the facts and circumstances. Id. (citation omitted). As long as the
proper procedures have been followed in conducting a probation revocation
hearing, “the trial court may order execution of a suspended sentence upon a
finding of a violation by a preponderance of the evidence.” Goonen v. State, 705
N.E.2d 209, 212 (Ind. Ct. App. 1999). When the alleged probation violation is
the commission of a new crime, conviction of the new crime is not required.
Pierce v. State, 44 N.E.3d 752, 755 (Ind. Ct. App. 2015) (citing Richeson v. State,
648 N.E.2d 384, 389 (Ind. Ct. App. 1995), trans. denied).
[14] The record reveals that the trial court initially ordered Driver to be imprisoned
for eight years with “5 years suspended, placed on supervised probation for 5
years.” Appellant’s Appendix Volume 2 at 51. As pointed out in his brief,
Driver does not challenge the finding that he violated his probation. At the
probation revocation hearing, he admitted to the allegation in the State’s
petition that he had two counts of domestic assault and a count of unlawful
possession of a weapon by a convicted felon. The court heard testimony from
Driver regarding several charges in Tennessee and Kentucky, as well as
admissions of probation violations, alcohol abuse, substance usage, and other
protection order violations. When the court asked about his pleading guilty to
assaulting his wife, Driver stated that he “never hit my wife,” admitted that he
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pushed her, and admitted that he “grabbed her arms to contain her when she’d
come at me, but that’s about all I’ve done,” before acknowledging that he knew
his action constituted a battery. Transcript Volume 1 at 17. He testified that he
had a leg and foot injury and back issues, but stated that his health was “all
right pretty much.” Id. at 5. To the extent Driver argues that his alleged
medical, financial, and family circumstances explain and mitigate his violation,
we will not reweigh the evidence below. Terrell v. State, 886 N.E.2d 98, 100
(Ind. Ct. App. 2008) (citing Piper v. State, 770 N.E.2d 880, 882 (Ind. Ct. App.
2002), trans. denied).
[15] Given the circumstances as set forth above, we cannot say that the court abused
its discretion in ordering Driver to serve the remainder of his previously
suspended sentence. See Milliner v. State, 890 N.E.2d 789, 793 (Ind. Ct. App.
2008) (holding that the trial court did not abuse its discretion in reinstating the
probationer’s previously suspended sentence), trans. denied.
Conclusion
[16] For the foregoing reasons, we affirm the trial court’s order that Driver serve the
remainder of his previously suspended sentence.
[17] Affirmed.
Bailey, J., and Crone, J., concur.
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