MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Oct 18 2016, 8:14 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Dale W. Arnett Gregory F. Zoeller
Winchester, Indiana Attorney General of Indiana
Jodi Kathryn Stein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Phillip D. Martin, October 18, 2016
Appellant-Defendant, Court of Appeals Case No.
35A05-1604-CR-1008
v. Appeal from the Huntington
Superior Court
State of Indiana, The Honorable Jeffrey R.
Appellee-Plaintiff. Heffelfinger, Judge
Trial Court Cause No.
35D01-0912-FC-251
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Phillip D. Martin (Martin), appeals the revocation of his
probation.
[2] We affirm.
ISSUES
[3] Martin raises two issues on appeal, which we restate as follows:
(1) Whether the State presented sufficient evidence to support the revocation of
Martin’s probation; and
(2) Whether the trial court abused its discretion in its imposition of sanctions.
FACTS AND PROCEDURAL HISTORY
[4] On December 18, 2009, Martin was arrested in Huntington County, Indiana,
and was subsequently charged with Count I, operating a motor vehicle after
forfeiture of license for life, a Class C felony, Ind. Code § 9-30-10-17; and Count
II, excessive speed, a Class C infraction, I.C. §§ 9-21-5-2(2); -13(a). On April
27, 2010, Martin entered into a plea agreement with the State, pursuant to
which he agreed to plead guilty to Count I, a Class C felony. In exchange, the
State would dismiss Count II. The State also agreed to a sentencing cap of two
years on the executed portion of Martin’s sentence. Sentencing was otherwise
left to the discretion of the trial court. On June 1, 2010, the trial court
conducted a sentencing hearing. The trial court accepted Martin’s guilty plea
and sentenced him to a term of eight years, with two years executed in the
Indiana Department of Correction and six years suspended to probation. In
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part, Martin’s conditions of probation stipulated that he “shall not commit a
criminal offense” or “carry, use or possess any firearms.” (Appellant’s App.
Vol. III, p. 10).
[5] Approximately five years later, on July 29, 2015, officers of the Wayne County
Sheriff’s Department were dispatched to the KOA Campground in Richmond,
Wayne County, Indiana, on the report of “a heated argument.” (State’s Exh.
10). Upon arrival, Officer Christa Brown (Officer Brown) spoke with Goldie
Martin (Goldie), who “was very upset.” (Tr. p. 17). Goldie reported that she
and her estranged husband, Martin, had been involved in an argument in the
presence of their nine-year-old grandson. According to Goldie, they began
arguing because Martin was talking on the telephone instead of conversing with
their grandson. The argument escalated to the point that she and Martin were
wrestling over the keys to her vehicle. Goldie stated that Martin threw a lawn
chair at the driver-side door of her vehicle, and he tossed her purse into the
campfire, although the purse did not sustain any damage. Goldie also informed
Officer Brown that Martin grabbed hold of her ponytail and slammed her head
against the steering wheel and “that he put his hands around her neck . . . and
strangled her with both hands.” (Tr. p. 21). Goldie indicated that she “was
very scared to be around [Martin],” and Officer Brown observed that Goldie’s
“hair was in a disarray. She had red marks on her skin and she was crying.”
(Tr. pp. 17-18). Goldie also had a broken, bloody fingernail.
[6] In addition, Goldie mentioned to Officer Brown that Martin “had been carrying
a handgun the day prior,” which she believed was located in her vehicle. (Tr. p.
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23). Goldie gave the officers permission to search her vehicle, and a Glock .45
caliber handgun was retrieved. When officers spoke with Martin, he explained
that the argument had begun because Goldie had overheard him having a
telephone conversation with a woman with whom he had been having an affair.
However, he denied that he engaged in any kind of physical altercation with
Goldie. Martin was arrested.
[7] On August 4, 2015, the State filed an Information in Wayne County, charging
Martin with Count I, domestic battery, a Level 6 felony, I.C. § 35-42-2-
1.3(a),(b)(2); Count II, strangulation, a Level 6 felony, I.C. § 35-42-2-9(b)(1);
and Count III, unlawful possession of a firearm with a prior felony conviction,
a Level 5 felony, I.C. § 35-47-2-1(e). On August 19, 2015, the State filed a
petition to revoke Martin’s probation in the Huntington County case, alleging
that he had violated the terms of his probation by committing a criminal offense
in Wayne County. On April 4, 2016, the trial court conducted a fact-finding
hearing. The State relied on the testimony of Officer Brown, who reiterated the
statements that Goldie had made at the scene, as well as Goldie’s recorded
statement and photographic evidence. Goldie testified as a defense witness and
indicated that she no longer remembered what had transpired during her
argument with Martin on July 29, 2015; however, she stated that Martin never
battered or strangled her. In addition, Goldie testified that she was so “angry
and hysterical” after hearing the voice of Martin’s mistress on the phone that
she “would have said anything” to get Martin into trouble. (Tr. p. 43). She
further added that the handgun did not belong to Martin. Rather, she testified
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that she had received the gun from a couple who attended her church—whose
names she could not remember—because they were concerned about the safety
of a woman living alone. Martin also testified, denying that he committed any
of the charged offenses.
[8] At the close of the evidence, the trial court found that Goldie “was a victim
who was a victim twice. This is [a] person [who] is so beat down she would
have said anything but I think she told the truth the day that the incident
happened.” (Tr. p. 58). Accordingly, the trial court concluded that Martin had
violated the terms of his probation “by committing the offense of domestic
battery, the strangulation[,] and the possession of a firearm with a prior[] felony
conviction.” (Tr. p. 57). The trial court ordered that Martin serve the balance
of his original sentence.
[9] Martin now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
[10] On appeal, Martin challenges the revocation of his probation. “‘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)
(quoting Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007)). Accordingly, the
trial court has discretion to set the conditions of probation and to revoke
probation if those conditions are violated. Id. On appeal following a trial
court’s determination of a probation violation and imposition of sanctions, we
review for an abuse of discretion. Id. It is an abuse of discretion if the trial
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court’s “decision is clearly against the logic and effect of the facts and
circumstances, or when the trial court misinterprets the law.” Id. (internal
citation omitted). Where the defendant has alleged that there is insufficient
evidence to find a violation of probation, our review is the same as with any
other sufficiency of the evidence question. Pierce v. State, 44 N.E.3d 752, 755
(Ind. Ct. App. 2015). As such, our court does not reweigh evidence or assess
the credibility of witnesses, and we consider only “the evidence favorable to the
State and all reasonable inferences therefrom.” Id.
[11] Although probation is a favor granted by the trial court rather than a matter of
right, once the favor is granted, the defendant’s liberty interests are implicated.
Vernon v. State, 903 N.E.2d 533, 536 (Ind. Ct. App. 2009), trans. denied. Thus,
prior to having his probation revoked, a defendant is entitled “to some
procedural due process.” Id. However, “[b]ecause probation revocation does
not deprive a defendant of his absolute liberty, but only his conditional liberty,
he is not entitled to the full due process rights afforded a defendant in a criminal
proceeding.” Id. Rather, the minimum due process rights to which a
probationer is entitled include:
(a) written notice of the claimed violations of probation; (b)
disclosure of evidence against him; (c) opportunity to be heard
and present evidence; (d) the right to confront and cross-examine
adverse witnesses . . . ; (e) a neutral and detached hearing body;
and (f) a written statement by the factfinder as to the evidence
relied on and reasons for revoking probation.
Id. at 536-37.
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[12] The revocation of a defendant’s probation requires the trial court to engage in a
two-step process. “First, the trial court must make a factual determination that
a violation of a condition of probation actually occurred. Second, if a violation
is found, then the trial court must determine the appropriate sanctions for the
violation.” Heaton, 984 N.E.2d at 616 (internal citation omitted). “[T]he
correct burden of proof for a trial court to apply in a probation revocation
proceeding is the preponderance of the evidence standard.” Id. at 617. The
violation of a single condition of probation is sufficient to support a probation
revocation. See Richardson v. State, 890 N.E.2d 766, 768 (Ind. Ct. App. 2008)
(quoting T.W. v. State, 864 N.E.2d 361, 364 (Ind. Ct. App. 2007), trans. denied).
Thus, “[i]f the trial court’s finding of a violation is supported by substantial
evidence of probative value, then we will affirm the revocation of probation.
When the alleged probation violation is the commission of a new crime,
conviction of the new crime is not required.” Pierce, 44 N.E.3d at 755 (internal
citation omitted).
I. Sufficiency of Evidence of Violation
[13] Martin claims that there is insufficient evidence to support the trial court’s
determination that he violated his probation. He first contends that “it is
unclear as to whether or not the trial court actually used preponderance of the
evidence” as the standard in finding a probation violation. (Appellant’s Br. p.
13). In its written Order on Probation Violation, the court stated that it found
Martin had violated the terms of his probation “by being arrested on
08/05/2015” in Wayne County. (Appellant’s App. p. 14). Because an arrest
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requires only probable cause, Martin now insists that the trial court simply
relied on the fact that there was probable cause to make an arrest in support of
its determination that he violated his probation. We disagree.
[14] One of Martin’s probation conditions stipulated that he must “not commit a
criminal offense.” (Appellant’s App. Vol. III, p. 10) (emphasis added). In its
petition to revoke probation, the State alleged that Martin violated this
condition, as evidenced by the fact that he was charged with domestic battery,
strangulation, and unlawful possession of a firearm with a prior felony
conviction. At the hearing, the State presented evidence to establish that
Martin actually committed the new offenses with which he was charged. At the
conclusion of the fact-finding hearing, the trial court specifically stated:
The burden is the preponderance of the evidence. I find that
[Martin] has violated the terms of probation by committing the
offense of domestic battery, the strangulation and the possession of
a firearm with a prior[] felony conviction. . . . In this particular
case the victim was upset but she was lucid. She gave very
detailed statements the day that it happened. . . . One of the
things that the Court of Appeals does not get . . . they do not get
to ascertain what the witnesses look like when they testify. In
this particular case, this was a victim who was a victim twice.
This is [a] person [who] is so beat down she would have said
anything but I think she told the truth the day that the incident
happened.
(Tr. pp. 57-58) (emphasis added) (last ellipsis in original).
[15] As already mentioned, the trial court is required to apply the preponderance of
the evidence standard in a probation revocation proceeding. Heaton, 984
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N.E.2d at 617. Here, the trial court specifically noted the appropriate burden of
proof, and we presume that a trial court knows and follows the applicable law.
See Thurman v. State, 793 N.E.2d 318, 321 (Ind. Ct. App. 2003). Moreover,
notwithstanding the language contained in the written Order on Probation
Violation, it is evident from the transcript that the trial court found a probation
violation because a preponderance of the evidence established that Martin
committed at least one new offense, not simply because he was arrested. See
Wilson v. State, 708 N.E.2d 32, 33 (Ind. Ct. App. 1999) (stating that a trial
court’s “oral statement, if it contains the facts relied upon and reasons for
revocation, and is reduced to writing in the transcript of the hearing, is
sufficient to satisfy” the due process requirement that a trial court “set forth in
writing the evidence relied upon and the reasons for his probation revocation”);
Hubbard v. State, 683 N.E.2d 618, 621 (Ind. Ct. App. 1997) (noting that, taken
together, the trial court’s written order of revocation and the hearing transcript
provided an adequate basis for appellate review and thus satisfied due process). 1
[16] Martin additionally asserts that there is insufficient evidence to support the trial
court’s determination that he committed domestic battery. Specifically, he
argues that the trial court
seemed to ignore the evidence before it that
1) at the hearing both Goldie and [Martin] testified no battery
1
Although Martin contends that the trial court’s written Order reveals that the trial court improperly relied
on the wrong standard of proof, Martin does not challenge that the trial court’s written Order as violating his
due process rights by failing to set forth the facts and reasons for revoking his probation.
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occurred.
2) the pictures show no injury or signs of injury except a broken
fingernail.
3) Goldie’s earlier statement of slamming her head against the
steering wheel could not have been true because there was no
sign of injury from that type of action.
4) Goldie’s initial statement about [Martin] throwing her purse
into the campfire could not [have] been true because the purse
was unscathed.
(Appellant’s Br. p. 14) (citations omitted). We find that Martin’s argument
amounts to a request that we reweigh evidence, which we will not do.
[17] Martin was charged with domestic battery under Indiana Code section 35-42-2-
1.3(a),(b)(2), which provides that “[a] person who knowingly or intentionally
touches an individual who . . . is or was a spouse of the other person . . . in a
rude, insolent, or angry manner that results in bodily injury to the person” and
does so “in the physical presence of a child less than sixteen (16) years of age,
knowing that the child was present and might be able to see or hear the offense”
commits domestic battery as a Level 6 felony. The evidence most favorable to
the trial court’s decision establishes that on July 29, 2015, Martin and Goldie,
who were married but living apart, were camping with their nine-year-old
grandson at the KOA Campground. After Goldie overheard Martin’s
telephone conversation with his girlfriend, an argument ensued, which
escalated to a physical confrontation. At some point during the altercation,
their grandson ran to the Campground’s main office for assistance, and the
police were summoned. When the police arrived, Goldie’s “hair was in a
disarray,” and “[s]he had red marks on her skin and she was crying.” (Tr. pp.
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17-18). Goldie informed Officer Brown that she was scared of Martin, who had
“used [her] ponytail to slam her head against the steering wheel” after they had
been wrestling over the keys to her vehicle. (Tr. p. 21). The photographic
evidence demonstrates, in part, that Goldie’s hair had been pulled loose from its
ponytail, and she had a broken and bloody fingernail. There is no indication in
the evidence as to what part of Goldie’s head was slammed against the steering
wheel—i.e., whether it was her forehead or the side or back of her head; thus,
Martin’s assertion that the photographs do not depict any apparent injuries to
Goldie’s face has little merit. 2 It was well within the discretion of the trial court
to discredit Goldie’s testimony at the fact-finding hearing and to accord more
weight to the statements she made immediately following the incident.
Moreover, the trial court was under no obligation to accept Martin’s self-serving
testimony as true. Accordingly, we find that a preponderance of the evidence
establishes that Martin committed the offense of domestic battery. 3
2
Goldie’s recorded statement was admitted into evidence during the hearing (State’s Exh. 9). Although our
court did not receive a copy of this recording, the State indicated during its closing argument that in her
recorded statement, Goldie mentioned that Martin “hurt her” when he pulled her hair and hit her head
against the steering wheel. (Tr. p. 54).
3
Because we find that there is a preponderance of the evidence to support the trial court’s determination that
Martin committed the crime of domestic battery, we need not address Martin’s contentions regarding the
sufficiency of the evidence as to his unlawful possession of the firearm. See Richardson, 890 N.E.2d at 768
(“Violation of a single condition of probation is sufficient to revoke probation.”) (quoting T.W., 864 N.E.2d
at 364). Moreover, we note that Martin has not offered a cogent argument relating to the trial court’s
determination that he committed the offense of strangulation, which alone would be sufficient to warrant the
revocation of his probation. Martin has waived this argument for appeal. See Ind. Appellate Rule
46(A)(8)(a).
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II. Revocation and Sanctions
[18] Martin next claims that following its finding of a probation violation, the trial
court abused its discretion by revoking his probation and imposing the balance
of his original sentence. If the trial court finds that a defendant has violated a
condition of probation,
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.
I.C. § 35-38-2-3(h). On appeal, Martin asserts that he “had faithfully reported
to probation and had complied with all the rules” during the first “[four and
one-half] years of his probation.” (Appellant’s Br. p. 15). Thus, he simply
argues that “[t]o execute the entire [six] years of probation for the first violation
of probation . . . seems rather harsh and surely must be an abuse of discretion.”
(Appellant’s Br. p. 16).
[19] Our supreme court has stated,
Once a trial court has exercised its grace by ordering probation
rather than incarceration, the judge should have considerable
leeway in deciding how to proceed. If this discretion were not
afforded to trial courts and sentences were scrutinized too
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severely on appeal, trial judges might be less inclined to order
probation to future defendants. Accordingly, a trial court’s
sentencing decisions for probation violations are reviewable using
the abuse of discretion standard.
Prewitt, 878 N.E.2d at 188.
[20] We first note that the trial court was statutorily authorized to require that
Martin execute “all . . . of the sentence that was suspended at the time of initial
sentencing.” I.C. § 35-38-2-3(h)(3). Although Martin served the majority of his
probationary period without any violations, he engaged in a physical altercation
with his estranged wife, who has been battling a terminal illness, in the presence
of their young grandson. The record indicates that a verbal argument over
Martin’s affair escalated to a physical altercation in which he grabbed Goldie’s
hair and slammed her head against the steering wheel, and he wrapped his
hands around her neck. Martin also threw Goldie’s purse into the fire pit, and
he dented the door of her vehicle by throwing a lawn chair at it. There is
further evidence that Martin was unlawfully in possession of a handgun.
Accordingly, based on this evidence, we cannot say that the trial court abused
its discretion by ordering that his entire suspended sentence be executed.
[21] Martin also claims that the trial court abused its discretion because he was
denied the “chance to present any mitigating evidence as to sentencing such as
work history, support payments or family dynamics.” (Appellant’s Br. p. 16).
As previously mentioned, due process requires the court to hold an evidentiary
hearing on the revocation of probation. See Vernon, 903 N.E.2d at 537. If a
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probation violation is proven, the trial court must decide whether the violation
warrants revocation of the probation. Treece v. State, 10 N.E.3d 52, 56 (Ind. Ct.
App. 2014) (quoting Sanders v. State, 825 N.E.2d 952, 955 (Ind. Ct. App. 2005),
trans. denied), trans. denied. “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. (alteration in
original) (quoting Sanders, 825 N.E.2d at 955).
[22] We find the present case is similar to Vernon, 903 N.E.2d at 533. In Vernon,
following a petition to revoke the defendant’s probation for violations including
the commission of new crimes, an evidentiary hearing was held, at the close of
which the trial court concluded that the defendant violated the conditions of his
probation and revoked the probation. Id. at 536. After the trial court ordered
the defendant’s commitment to the Department of Correction, the defendant
attempted to introduce additional evidence regarding “some of the good [he
had] done,” but the trial court refused him this opportunity. Id. On appeal, the
defendant asserted that his rights were violated because the trial court denied
him the opportunity to present evidence that explained and mitigated his
violation. Id. at 537. Our court noted that the defendant was afforded an
evidentiary hearing, during which he testified and denied the allegations against
him, and the defendant cited “no authority showing that he [was] entitled to
another [hearing].” Id.
[23] In Vernon, we distinguished between situations where a defendant admits to his
probation violations and those in which he denies the allegations. In the former
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case, an evidentiary hearing to determine whether there has been a violation is
not necessary. Id. Rather, the trial court proceeds directly to determining
whether the violation warrants revocation. Id. In these cases, the probationer
“must still be given an opportunity to offer mitigating evidence suggesting that
the violation does not warrant revocation.” Id. (quoting Woods v. State, 892
N.E.2d 637, 640 (Ind. 2008)). However, in the Vernon case, the defendant had
an opportunity to present any evidence to explain and mitigate his violation
during the evidentiary hearing. Therefore, our court affirmed the revocation of
his probation. See id.
[24] As in Vernon, in the present case, Martin was afforded an evidentiary hearing,
during which he testified, denying the allegations raised in the petition to
revoke his probation. Thus, the State asserts that despite his opportunity “to
offer any mitigating circumstances to convince the trial court to impose a lesser
sanction,” Martin “simply stood mute and effectively waived his opportunity.”
(State’s Br. p. 13). On the other hand, Martin now asserts that the holding in
Vernon “needs to be revisited!” (Appellant’s Reply Br. p. 6). He argues that
[w]hen there is a contested hearing on whether or not a probation
rule has been fractured by allegedly committing a crime, evidence
of such things as work history, family needs, obligations, support,
and medical maladies are irrelevant to the purpose of the hearing.
Those kinds of mitigators don’t explain why a violation occurred
and would only go towards mitigating any sentence.
(Appellant’s Reply Br. p. 6). Martin further contends that he had “no
opportunity to present mitigation evidence . . . [or] to explain the allegations
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because he denied all the allegations.” (Appellant’s Reply Br. p. 6). As a final
point, Martin insists that
the State is dead wrong that [he] stood mute in the issue. The
[Attorney General] wasn’t there and I was. The trial judge
rendered the decision and immediately thereafter the sentence
and then the hearing was over. When Counsel tried to speak
further to the judge, the judge spoke back condescendingly and
arrogantly in the same manner he had acted throughout the
entire course of the case as he turned his back and walked away.
(Appellant’s Reply Br. pp. 6-7). We find no merit in Martin’s arguments.
[25] Our court has previously stated that “[t]rial courts are not required to balance
‘aggravating or mitigating circumstances when imposing sentence in a
probation revocation proceeding.’” Treece, 10 N.E.3d at 59. Furthermore, due
process required that Martin have the “opportunity to be heard and present
evidence,” which he clearly received. Vernon, 903 N.E.2d at 536. We find that
it was incumbent upon Martin to present all of his evidence to either explain or
mitigate his probation violation prior to resting his case. Finally, we find
absolutely nothing in the record to support Martin’s insolent claim that the trial
court “condescendingly and arrogantly” prevented him from offering the
evidence he desired. (Appellant’s Reply Br. p. 7). Martin received an
evidentiary hearing and an opportunity to present evidence in accordance with
due process, and the trial court did not abuse its discretion by imposing
sanctions without hearing additional evidence.
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CONCLUSION
[26] Based on the foregoing, we conclude that there is sufficient evidence to support
the revocation of Martin’s probation, and the trial court acted within its
discretion in sanctioning Martin’s probation violations.
[27] Affirmed.
[28] Bailey, J. and Barnes, J. concur
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