Jacqueline A. Jackson v. State of Indiana , 29 N.E.3d 151 ( 2015 )

Mar 31 2015, 10:21 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Derick W. Steel Gregory F. Zoeller
Deputy Public Defender Attorney General of Indiana
Kokomo, Indiana
Eric P. Babbs
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jacqueline A. Jackson, March 31, 2015
Appellant-Defendant, Court of Appeals Case No.
34A04-1409-CR-455
v. Appeal from the Howard Superior
Court
State of Indiana, The Honorable William C. Menges,
Appellee-Plaintiff Jr., Judge
Cause No. 34D01-1201-FB-30
Najam, Judge.
Statement of the Case
[1] Jacqueline Jackson appeals the trial court’s revocation of her probation.
Jackson raises a single issue for our review, namely, whether the State
presented sufficient evidence to support the revocation of her probation. We
reverse.
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Facts and Procedural History
[2] On October 10, 2012, Jackson pleaded guilty to neglect of a dependent, as a
Class D felony. The trial court sentenced Jackson to 548 days, with eighteen
days executed and 530 days suspended to probation. One condition of her
probation read as follows: “Violation of any law (city, state, or federal) is a
violation of your probation; within forty-eight (48) hours of being arrested or
charged with a new criminal offense, you must contact your Probation Officer.”
Appellant’s App. at 30.
[3] While on probation, on February 19, 2014, Jackson was arrested and charged
with having committed child molesting in January 2012, before she had been
sentenced and placed on probation in the instant matter. Jackson did not notify
her probation officer about her arrest until thirty days later. In the meantime,
on March 7, 2014, the State filed a notice of probation violation alleging only
that Jackson did not timely notify her probation officer about her February 19
arrest.
[4] On August 28, 2014, the court held a fact-finding hearing on the State’s notice
of probation violation. Jackson’s probation officer, Jeremie Lovell, testified
that Jackson did not notify him of the arrest until thirty days after the arrest had
occurred, and Jackson did not dispute that testimony. Lovell also testified that
Jackson did not commit a new crime while on probation. Nonetheless, the
State argued that Jackson was required to notify Lovell “within 48 hours of
being arrested” regardless of when the alleged offense had occurred. Tr. at 19.
But Jackson argued that she was only required to notify Lovell of any arrests
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arising from criminal offenses she had committed during the probationary term.
Thus, Jackson alleged that she had not violated her probation.
[5] At the conclusion of the fact-finding hearing, the trial court found that Jackson
had violated the condition of her probation as alleged in the State’s notice of
probation violation. Accordingly, the court revoked Jackson’s probation and
ordered her to serve 194 days in the Department of Correction. The trial court
also ordered Jackson to serve an additional 365 days on probation thereafter.
This appeal ensued.
Discussion and Decision
[6] On appeal, Jackson contends that the State presented insufficient evidence to
support her probation revocation. In determining whether there is sufficient
evidence to support a probation revocation, we use the same standard of review
as with any other sufficiency matter. Martin v. State, 813 N.E.2d 388, 389 (Ind.
Ct. App. 2004). We will consider only the evidence most favorable to the State,
along with the reasonable inferences to be drawn therefrom. Id.
[7] Jackson contends that, because she allegedly committed the child molesting in
January 2012, and her probation did not begin until October 2012, she was not
required to report the February 2014 arrest to Lovell. Again, the relevant
probation condition provides as follows: “Violation of any law (city, state, or
federal) is a violation of your probation; within forty-eight (48) hours of being
arrested or charged with a new criminal offense, you must contact your
Probation Officer.” Appellant’s App. at 30. In essence, Jackson asserts that,
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because she allegedly committed the underlying criminal offense in January
2012, that alleged offense is not a new criminal offense for purposes of her
probation agreement, and, as such, the reporting requirement does not apply.
[8] The State maintains that “[t]he grammatical structure of the probation term
creates two independent duties—first, to abstain from illegal activity, and
second, to report any new arrests or charges.” Appellee’s Br. at 6. In other
words, the State asserts that the reporting requirement is independent of the
requirement that Jackson abstain from illegal activity. Thus, the State reads the
reporting requirement to compel Jackson to report any arrests that occur and
any charges that are brought against her while she is on probation. We cannot
agree with the State’s reading of the probation condition.
[9] In conjunction with her guilty plea, Jackson agreed to abide by certain
probation conditions.1 Our courts have long held that plea agreements are in
the nature of contracts entered into between the defendant and the State.
Valenzuela v. State, 898 N.E.2d 480, 482 (Ind. Ct. App. 2008). As such, we look
to principles of contract law when construing a plea agreement. Id. The
primary goal of contract interpretation is to give effect to the parties’ intent. Id.
When the terms of a contract are clear and unambiguous, they are conclusive of
that intent, and the court will not construe the contract or look to extrinsic
1
On October 25, Jackson read and signed a document entitled “Rules of Probation” in open court. Id. at 7.
While Jackson did not include a copy of the Rules of Probation in her appendix on appeal, the parties do not
dispute either that the challenged probation condition was included in that agreement or that her plea
agreement incorporated those rules.
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evidence. Id. at 483. Rather, we will merely apply the contractual provisions.
Id. Terms of a contract are not ambiguous merely because a controversy exists
between the parties concerning the proper interpretation of terms. Id. Instead,
ambiguity will be found in a contract only if reasonable people would find the
contract subject to more than one construction. Id. We construe any contract
ambiguity against the party who drafted it, which, in this case, is the State. See,
e.g., id.
[10] We agree with Jackson that the probation condition at issue in this case is
ambiguous. The condition is comprised of two clauses separated by a
semicolon. A semicolon is used to join two closely related independent clauses.
See Andrea Lunsford & Robert Connors, The Everyday Writer 204 (1999). The
two clauses would be independent and unrelated if they had been separated by a
period.
[11] The first clause plainly states that Jackson shall not violate any law. The
second clause required Jackson to contact her probation officer “within forty-
eight (48) hours of being arrested or charged with a new criminal offense.”
Appellant’s App. at 30 (emphasis added). Because the second clause is related
to the first clause, this reporting requirement is not entirely independent, and it
is reasonable to interpret the second clause to mean that, if the probationer
violates a law during the probationary period and gets arrested or charged for
that offense, she must notify the probation officer. Indeed, the term “new
criminal offense” in the second clause refers to the first clause’s prohibition
against the violation of any law.
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[12] Further, the wording of the second clause renders its meaning ambiguous
because the phrase “with a new criminal offense” can be read to apply both to
“being arrested” and “charged” or only to “charged.” In other words, it is
unclear whether Jackson was required to report any arrest or only an arrest
arising from a new criminal offense. While a defendant is typically arrested for
an offense and charged with an offense, it is not unreasonable to read the
condition here to require notification of an arrest only when the defendant has
committed a new criminal offense while on probation.2
[13] We reject the State’s contention that a “new criminal offense” unambiguously
includes “any crime for which one is first arrested during one’s probationary
period.” Appellee’s Br. at 8. Webster’s Third New International Dictionary,
1522 (2002), defines “new” as “having existed . . . but a short time: having
originated or occurred lately: not early or long in being: RECENT[.]” (Emphasis
added). Under that definition, a new criminal offense could mean an offense
that comes to light for the first time during the probationary period. But it
could just as reasonably mean only an offense that occurs during the
probationary period, especially given the general rule that to violate one’s
probation, one must perform some prohibited act, or fail to perform some
required action, during the period of probation. See, e.g., C.S. v. State, 817
N.E.2d 1279, 1281 (Ind. Ct. App. 2004). In other words, conditions of
2
It has long been established that an arrest alone does not warrant the revocation of probation. Martin, 813
N.E.2d at 390.
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probation are prospective and do not relate back to a defendant’s conduct prior
to the probationary period. But under the State’s interpretation of the condition
here, a prior criminal offense can be deemed a “new criminal offense.” It seems
illogical for the conditions of a probation order to relate back to conduct that
occurred prior to the order. Nevertheless, the condition could have been
unambiguously written to require that Jackson report any arrest, even an arrest
based on an “old criminal offense” that first manifests itself during the
probationary period. But it was not.
[14] Again, we construe any ambiguity against the State. See Valenzuela, 898 N.E.2d
at 483. Accordingly, we construe the condition of probation at issue here to
mean that Jackson was only required to notify Lovell of any arrests resulting
from alleged offenses committed after she began her probation.
[15] The State did not present sufficient evidence to show that Jackson violated the
conditions of her probation. We hold that the trial court erred when it revoked
Jackson’s probation.
[16] Reversed.
Mathias, J., concurs.
Bradford, J., dissents with separate opinion.
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Bradford, Judge, dissenting.
[17] Because I believe that the State presented sufficient evidence to prove that
Jackson violated the terms of her probation, I respectfully dissent from the
majority’s conclusion otherwise.
[18] The terms of Jackson’s probation are as follows: “Violation of any law (city,
state, or federal) is a violation of your probation; within forty-eight hours of
being arrested or charged with a new criminal offense, you must contact your
Probation Officer.” Appellant’s App. p. 30. The language of the probation
term creates two independent duties—first, to abstain from illegal activity, and
second, to report any new arrests or charges. Stated differently, the reporting
requirement is independent of the requirement that Jackson abstain from illegal
activity. Based upon this requirement, Jackson violated the terms of her
probation by waiting approximately thirty days to inform her probation officer
that she had been arrested and charged with a new crime on February 19, 2014.
[19] Although the underlying criminal actions that are alleged in the new criminal
charges may have taken place prior to the date that Jackson was placed on
probation in the instant matter, Jackson was not alleged to have violated the
terms of her probation by committing a new criminal act. Rather, Jackson was
alleged to have violated the terms of her probation by failing to comply with the
requirement that she notify her probation officer within forty-eight hours of
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being arrested for or charged with a new criminal offense. The specific
language setting forth the notice requirement, which again is separate from the
requirement that one not commit a new criminal act, is not specifically limited
to arrests or charges relating to criminal acts occurring after the probationary
term began.
[20] Probation is a matter of grace left to trial court discretion, not a right to
which a criminal defendant is entitled. The trial court determines the
conditions of probation and may revoke probation if the conditions are
violated. 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
severely on appeal, trial judges might be less inclined to order
probation to future defendants.
Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007) (citations and quotation marks
omitted). A condition of probation which requires a probationer to notify her
probation officer upon arrest or being charged with a new criminal offense
serves the State’s legitimate interest in monitoring and supervising a
probationer. Based upon a fair and plain reading of the probation condition
that is at issue in this case, the State presented sufficient evidence to prove that
Jackson had violated the terms of her probation by failing to notify her
probation officer within forty-eight hours of being arrested for and charged with
child molesting. Accordingly, I would therefore vote to affirm the judgment of
the trial court.
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