Eugene White v. State of Indiana (mem. dec.) ( 2017 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Oct 18 2017, 9:02 am
this Memorandum Decision shall not be
CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Gregory L. Fumarolo Curtis T. Hill, Jr.
Fort Wayne, IN Attorney General of Indiana
James B. Martin
Deputy Attorney General
Indianapolis, IN
IN THE
COURT OF APPEALS OF INDIANA
Eugene White, October 18, 2017
Appellant-Defendant, Court of Appeals Case No.
02A03-1705-CR-1157
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Frances C.
Appellee-Plaintiff Gull, Judge
Trial Court Cause No.
02D05-1304-FB-70
Vaidik, Chief Judge.
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Case Summary
[1] Eugene White appeals the revocation of his probation. We affirm.
Facts and Procedural History
[2] In 2013, White pled guilty to burglary and was sentenced to ten years—six
years to serve and four years suspended to probation. He was released to
probation in October 2015. In April 2016, White violated his probation by
failing to report as directed, and in June 2016 he was readmitted to probation
with the added condition of “zero tolerance.” Appellant’s App. Vol. II p. 53.
[3] One morning about two months later, a man in Fort Wayne called police to
report that someone had broken into his house and stolen his TV and other
items. Around the same time, a few blocks away from the house, a detective
saw a man, later identified as White, carrying a TV. Thinking this odd, the
detective approached White, who dropped the TV and ran. The detective
eventually caught White, and it was determined that the TV and other items he
had in his possession had been taken from the burglarized house.
[4] Based on this conduct, the State made two filings: a new criminal case,
charging White with burglary and resisting law enforcement, and a petition to
revoke his probation in the earlier case. A jury found White guilty of the new
charges, and the trial court scheduled a sentencing hearing. The court said that
it would “status” the probation matter at the same hearing, and the State asked
the court to “incorporate the evidence presented at the trial into that status,”
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which the court agreed to do. Tr. Vol. II pp. 186-87. At that hearing, the court
sentenced White to ten years on the new charges, found that he had violated his
probation on the original burglary charge, and ordered him to serve the four
years of previously suspended time.
[5] White now appeals.
Discussion and Decision
[6] White’s first argument on appeal is that the State failed to present sufficient
evidence to prove—under the preponderance-of-the-evidence standard
applicable in probation-revocation proceedings, see Ind. Code § 35-38-2-3(f)—
that he violated his probation. Specifically, he questions the strength of the
State’s evidence that he committed the new burglary, notwithstanding the jury’s
guilty verdict.1 There are two problems with this argument. First, the strength
of that evidence is irrelevant; the mere proof of conviction, regardless of the
strength of the State’s evidence, gave the trial court all it needed to find a
probation violation. See Bane v. State, 579 N.E.2d 1339, 1341 (Ind. Ct. App.
1991) (“The evidence that Bane was convicted of murder was admitted in the
sentencing phase of the hearing, and conclusively established that he committed
a crime for purposes of the immediately subsequent probation revocation
1
In the “Summary of the Argument” section of his brief, White notes that he has filed a separate appeal to
challenge the burglary conviction. Nowhere in his brief, however, does he develop an argument as to why
that fact should impact our review of the probation revocation.
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phase.”), trans. denied; see also Henderson v. State, 544 N.E.2d 507, 513 (Ind.
1989) (“The burglary conviction provided grounds supporting the trial court in
its finding that Henderson had violated his probation.”). Second, even if we
disregard the burglary charge and conviction, White concedes that he
committed resisting law enforcement, and that criminal act alone justified
revocation. See Ind. Code § 35-38-2-1(b) (“If the person commits an additional
crime, the court may revoke the probation.”). White has not shown that the
trial court erred by finding a probation violation.
[7] White’s second argument fares no better. He asserts that the trial court should
not have ordered him to serve all four years of his suspended time. Our trial
courts enjoy broad discretion in sanctioning probation violations, Runyon v. State,
939 N.E.2d 613, 618 (Ind. 2010), and the court did not abuse that discretion in
this case. White had been on probation for his original burglary for less than six
months when he committed his first probation violation (failure to report). He
was allowed to remain on probation, but a “zero tolerance” condition was
added. Two months later, he committed his new crimes, including another
burglary. Also, as the trial court noted, White has a criminal record stretching
back to 2008, and less restrictive efforts at rehabilitation (including informal
probation and shorter jail sentences) have failed. The trial court acted well
within its discretion when it ordered White to serve all of his suspended sentence.
[8] Affirmed.
Mathias, J., and Crone, J., concur.
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