Ronald Lidy v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be Jan 24 2018, 7:08 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Donald E.C. Leicht Curtis T. Hill, Jr.
Kokomo, Indiana Attorney General of Indiana
Matthew B. MacKenzie
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Ronald Lidy, January 24, 2018
Appellant-Defendant, Court of Appeals Case No.
34A05-1709-CR-2195
v. Appeal from the Howard Superior
Court
State of Indiana, The Honorable William C.
Appellee-Plaintiff. Menges, Jr., Judge
Trial Court Cause No.
34D01-1609-F6-958
Bailey, Judge.
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Case Summary
[1] Ronald Lidy (“Lidy”) challenges the revocation of his probation imposed upon
his plea of guilty to Unlawful Possession of a Syringe, as a Level 6 felony. 1 He
presents the sole issue of whether sufficient evidence supports the revocation
decision. We affirm.
Facts and Procedural History
[2] On March 7, 2017, Lidy pled guilty to Unlawful Possession of a Syringe. He
was sentenced to 548 days imprisonment, with six days to be executed and the
remainder suspended to probation. Among other probationary conditions,
Lidy agreed to refrain from illegal drug use.
[3] On April 13, 2017, and on April 21, 2017, Lidy tested positive for cocaine and
opiates; the State alleged that Lidy had violated his probation. On May 11,
2017, and on June 22, 2017, Lidy admitted to the probation violation
allegations. Lidy served four weekends in jail for the May violation and 60
days in jail for the June violation.
[4] On August 4, 2017, the State filed a Petition to Revoke Suspended Sentence.
The petition alleged that Lidy had, on July 27, 2017, “tested positive for
1
Ind. Code § 16-42-19-18.
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cocaine and opiates at Avertest” in violation of the following term of his
probation:
You may not consume or possess on your person or in your
residence any controlled substance (illegal drug) except as
prescribed to you by a licensed physician. You must submit to
alcohol and drug testing when ordered by the Probation
Department, or any police officer. An attempt to dilute or alter a
urine sample to mask (cover up) the test results is a violation of
this order. You are responsible for the payment of the drug
testing. A refusal to submit to a urine screen will be considered
the same as a positive screen.
(App. Vol. II, pg. 30.)
[5] A hearing was conducted on September 12, 2017, at which Lidy’s probation
officer, Laura Rood (“Rood”), testified. The trial court revoked Lidy’s
probation and ordered that he serve the remaining 466 days of his suspended
sentence. Lidy now appeals.
Discussion and Decision
[6] Probation is a matter of grace and not a right to which a criminal defendant is
entitled. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). The decision to
revoke probation is within the discretion of the trial court, and its decision is
reviewed on appeal only for an abuse of that discretion. Woods v. State, 892
N.E.2d 637, 639 (Ind. 2008). We will consider only the evidence most
favorable to the judgment without reweighing the evidence or judging the
credibility of witnesses. Id. If there is substantial evidence of probative value to
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support the trial court’s decision that a defendant has violated any terms of
probation, this Court will affirm the revocation decision. Id. at 639-40.
[7] Probation revocation is a two-step process. First, the court must make a factual
determination that a violation of a condition of probation occurred. Id. at 640.
Next, if a probation violation has been proven, the trial court must determine if
the violation warrants revocation of the probation. Id.
[8] At the probation revocation hearing, Rood testified that, on July 27, 2017, Lidy
had tested positive for cocaine and opiates “at Avertest.” (Tr. at 20.) Lidy does
not deny the presentation of evidence that he tested positive for cocaine and
opiates; rather, he argues that this evidence is insufficient to support revocation
because Rood did not specifically testify that the Probation Department had
ordered the test by Avertest and the State did not present evidence that Lidy
lacked a valid prescription for opiates.
[9] Paragraph 5 of Lidy’s Conditions of Supervised Probation, quoted in the
Petition to Revoke Suspended Sentence, requires that Lidy refrain from illegal
drug use, submit to testing ordered by the Probation Department, not alter a
sample, and pay for drug testing. The language is broader than the focus of the
State’s evidence at the revocation hearing. Had the State relied upon an
allegation that Lidy refused to “submit to alcohol and drug testing when
ordered by the Probation Department, or any police officer,” (App. Vol. II, pg.
30.), the State would have been required to establish that its agent ordered the
refused test. Here, however, the proscribed conduct at issue in the revocation
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hearing was Lidy’s use of illegal drugs. The State did not rely upon an
allegation that Lidy failed to submit, altered a sample, or failed to pay for
testing. The State offered evidence upon a single violation, that is, use of illegal
drugs. Only a single violation need be established. Woods, 892 N.E.2d at 639.
[10] Nonetheless, the State presented evidence of the relationship between Avertest
and the Probation Department. Rood testified that Avertest was “the company
we use for drug screens” and that she had received results from that company.
(Tr. at 17.) She further testified that, after two failed drug screens, Lidy had
“continued with [the] Avertest program.” (Tr. at 20.) From this evidence, the
fact-finder could infer that the Avertest drug screen at issue had been ordered by
the Probation Department.
[11] Lidy has also claimed that the State bore the burden to prove that Lidy did not
possess a valid prescription for cocaine or opiates. The State alleged, in
essence, that Lidy violated his probation by committing a new drug-related
criminal offense. “The existence of a valid prescription for a controlled
substance is a defense to the crime of possession” and “[t]he defendant bears the
burden of proving this defense by a preponderance of the evidence.” Lundy v.
State, 26 N.E.3d 656, 658 (Ind. Ct. App. 2015). Lidy does not persuade us that
a different burden of proof would apply in a probation revocation proceeding,
where the probationary term recognizes an “exception” to the prohibited use.
We reject Lidy’s claim that the State failed to offer evidence on an issue upon
which it bore the burden of proof.
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Conclusion
[12] The State presented sufficient evidence to support the revocation decision.
[13] Affirmed.
Kirsch, J., and Pyle, J., concur.
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