Rex A. Shannon v. State of Indiana (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Apr 14 2015, 9:38 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Douglas R. Long Gregory F. Zoeller
Anderson, Indiana Attorney General of Indiana
Christina D. Pace
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Rex A. Shannon, April 14, 2015
Appellant-Defendant, Court of Appeals Cause No.
48A02-1409-CR-653
v. Appeal from the Madison Circuit
Court.
State of Indiana, The Honorable Dennis Carroll,
Judge.
Appellee-Plaintiff.
Cause No. 48D01-1106-FB-1043
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Rex A. Shannon (Shannon), appeals the trial court’s
revocation of his probation.
[2] We affirm.
ISSUES
[3] Shannon raises three issue on appeal which we consolidate and restate as the
following two issues:
(1) Whether Shannon received ineffective assistance of trial counsel; and
(2) Whether the trial court abused its discretion when it revoked his probation
and imposed the balance of his previously-suspended sentence.
FACTS AND PROCEDURAL HISTORY
[4] On June 7, 2011, the State filed an Information charging Shannon with one
Count of unlawful possession of a firearm by a serious violent felon, a Class B
felony; one Count of unlawful possession of firearm by domestic batterer, a
Class A misdemeanor; and one Count of maintaining a common nuisance, a
Class D felony. On December 19, 2011, Shannon entered into a plea
agreement with the State in which he pled guilty to unlawful possession of a
firearm by a serious violent felon, a Class B felony. On February 6, 2012, the
trial court accepted the plea agreement and sentenced Shannon to thirteen years
at the Department of Correction (DOC), with seven years suspended to
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probation. The remaining Counts were dismissed as part of the plea agreement.
Shannon was released to probation on March 31, 2014.
[5] On July 18, 2014, Madison County Deputy Sherriff Lance Blossom (Deputy
Blossom) stopped Shannon, who was travelling at sixty-seven miles per hour in
a fifty-five mile per hour speed zone. After initiating the traffic stop, Deputy
Blossom approached Shannon’s vehicle and he encountered the smell of
marijuana emanating from inside. Deputy Blossom immediately called for
assistance. When back-up arrived, Deputy Blossom again made contact with
Shannon and explained what he had initially observed. To dispel Deputy
Blossom’s suspicion, Shannon stated that a search would not yield anything,
and he consented to his vehicle being searched. In the center console, Deputy
Blossom found an empty cigarette pack containing a yellow pill which was later
confirmed to be hydrocodone. After reading Shannon his Miranda rights,
Shannon informed Deputy Blossom that he had received the hydrocodone pill
from a friend earlier that day and he did not have a prescription for it.
[6] On July 22, 2014, the State filed an Information charging Shannon with
possession of a controlled substance, a Level 6 felony, Ind. Code § 35-48-4-7.
The next day, Shannon’s probation officer, Carl Chambers (Chambers), filed a
notice of violation of probation alleging that Shannon: committed a new
offense, failed to obtain a substance abuse evaluation, failed to pay his
probation and administrative fees, and failed to maintain full-time work or
verify his employment. A bifurcated evidentiary hearing was conducted on
September 2 and 15, 2014, to consider whether or not to revoke Shannon’s
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probation. At the conclusion of the hearing, the trial court accepted Shannon’s
admission that he had not obtained a substance abuse evaluation and found
that the State had met its burden in proving that Shannon had not worked full
time as required, failed to authenticate his employment information, and
committed a new crime. As a result, the trial court ordered Shannon to serve
the balance of his seven-year term in the DOC.
[7] Shannon now appeals. Additional information will be provided as necessary.
DISCUSSION AND DECISION
I. Ineffective Assistance of Counsel
[8] Shannon first urges us to find that his trial counsel was ineffective for failing to
object or to suppress Deputy Blossom’s testimony concerning the search of his
vehicle.
[9] We review claims of ineffective assistance of counsel under the two prongs set
forth in Strickland v. Washington, 466 U.S. 668 (1984). Bieghler v. State, 690
N.E.2d 188, 192 (Ind. 1997), cert. denied, 525 U.S. 1021 (1998). The same
standard applies to claims of ineffective assistance of trial or appellate counsel.
Id. To prevail on a claim of ineffective assistance of counsel, the petitioner
must show that his counsel’s performance fell below an objective standard of
reasonableness as determined by prevailing norms, and that the lack of
reasonable representation prejudiced him. Randolph v. State, 802 N.E.2d 1008,
1013 (Ind. Ct. App. 2004), trans. denied. To satisfy the first prong, the petitioner
must show that counsel’s performance was deficient in that counsel’s
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representation fell below an objective standard of reasonableness and that
counsel committed errors so serious that petitioner did not have the “counsel”
guaranteed by the Sixth Amendment. Reed v. State, 856 N.E.2d 1189, 1195
(Ind. 2006). To show prejudice, the petitioner must show a reasonable
probability that, but for counsel’s errors, the result of the proceeding would
have been different. Id. A reasonable probability is a probability sufficient to
undermine confidence in the outcome. Pruitt v. State, 903 N.E.2d 899, 906 (Ind.
2009).
[10] When considering a claim of ineffective assistance of counsel, a “strong
presumption arises that counsel rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment.”
Morgan v. State, 755 N.E.2d 1070, 1072 (Ind. 2001). “[C]ounsel’s performance
is presumed effective, and a defendant must offer strong and convincing
evidence to overcome this presumption.” Williams v. State, 771 N.E.2d 70, 73
(Ind. 2002). Evidence of isolated poor strategy, inexperience, or bad tactics will
not support a claim of ineffective assistance of counsel. Pryor v. State, 973
N.E.2d 629, 631-32 (Ind. Ct. App. 2012). In addition, when an ineffective
assistance of counsel claim is based upon a failure to object, the defendant must
first prove that an objection would have been sustained by the trial court had
defense counsel objected at trial and, second, that he was prejudiced by the
failure. Mays v. State, 719 N.E.2d 1263, 1265-66 (Ind. Ct. App. 1999), trans.
denied.
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[11] Shannon argues that his trial counsel was ineffective for failing to object to
Deputy Blossom’s testimony regarding the fruits of the search. Shannon
maintains that the search violated Article I, Section 11 of the Indiana
Constitution and the Fourth Amendment to the United States Constitution. In
countering Shannon’s arguments, the State maintains that the trial court would
not have permitted trial counsel’s objection since Shannon consented to the
search and that the search fell within the automobile exception. We agree.
[12] The Fourth Amendment to the United States Constitution, applicable to the
States through the Fourteenth Amendment, provides, “The right of the people
to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated.” U.S. Const. amend IV. The
Indiana Constitution includes a nearly-identical provision. Ind. Const. art. I, §
11; Mitchell v. State, 745 N.E.2d 775, 785–86 (Ind. 2001). “A traffic stop of an
automobile and temporary detention of its occupants constitutes a ‘seizure’
within the meaning of the Fourth Amendment.” Bush v. State, 925 N.E.2d 787,
789–90 (Ind. Ct. App. 2010). A search falls within the automobile exception
when a vehicle is readily mobile and there is probable cause to believe it
contains contraband or evidence of a crime. Meister v. State, 933 N.E.2d 875,
878-79 (Ind.2010) (citing Maryland v. Dyson, 527 U.S. 465, 467 (1999)). When
there is probable cause, police have the authority to search a vehicle and all
containers located therein. See Krise v. State, 746 N.E.2d 957, 962 (Ind. 2001).
[13] We note that Shannon does not argue that Deputy Blossom lacked probable
cause to search the vehicle. Rather, he contends that the warrantless search was
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improper because the odor of marijuana did not come from the cigarette box,
but the car. We have recognized that the odor of marijuana on a person’s
breath and emanating from inside a vehicle may give rise to probable cause that
a person possesses marijuana. Edmond v. State, 951 N.E.2d 585, 590–91 (Ind.
Ct. App. 2011). As noted above, when probable cause exists, police have the
authority to search a vehicle and all containers located therein. See Krise, 746
N.E.2d at 962.
[14] When Deputy Blossom stopped Shannon’s vehicle he noticed the smell of burnt
marijuana originating from Shannon’s vehicle. Deputy Blossom testified that
he was specifically looking for marijuana or “something of that nature” in
Shannon’s vehicle. (Transcript p. 50). Following Deputy Blossom’s request to
search the vehicle, and supported by the fact that there was probable cause to
search the vehicle, Deputy Blossom found an empty cigarette pack in the center
console containing a hydrocodone pill. At Shannon’s evidentiary hearing,
Deputy Shannon repeated Shannon’s statements that Shannon had acquired the
hydrocodone pill from a friend and had no prescription for it. Based on the
foregoing, we conclude that the warrantless search was valid and that it did not
violate Shannon’s Fourth Amendment rights.
[15] Finding that the search was valid, we cannot say there is a reasonable
probability that the objection to Deputy Blossom’s testimony would have been
sustained if made. Nor is there a reasonable probability that a motion to
suppress would have been granted on this ground. Accordingly, Shannon has
not met his burden of demonstrating that counsel’s performance on this issue
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fell below an objective standard of reasonableness. But even assuming for the
sake of argument that counsel’s failure to object or move to suppress Deputy
Blossom’s testimony regarding a search, Shannon has still failed to show that,
but for counsel’s error, the outcome of the trial would have been different. To
be precise, Shannon has failed to show that, but for the testimony confirming
that he committed a new offense—possession of a controlled substance—the
trial court would not have revoked his probation. In the instant case, Shannon
made an admission that he had failed to submit to a substance evaluation and
that he also had failed to pay his probation or administration fees. This court
has held that a single violation of the terms of probation is sufficient to revoke
probation. Snowberger v. State, 938 N.E.2d 294, 296 (Ind. Ct. App. 2010).
Therefore, we find no ineffective assistance of counsel.
II. Probation Revocation
[16] Lastly, Shannon argues that the trial court abused its discretion by ordering him
to serve his previously suspended sentence. It is well established that a person’s
probation may be revoked if the person has violated a condition of probation
during the probationary period. I.C. § 35-38-2-3(a)(1). We view probation as a
matter of grace left to the trial court’s discretion, not a right to which a
defendant is entitled. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007).
Therefore, a probationer faced with a petition to revoke his probation is not
entitled to the full panoply of rights he enjoyed before his conviction. Cooper v.
State, 900 N.E.2d 64, 66 (Ind. Ct. App. 2009). For instance, the State only
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needs to prove an alleged violation of probation by a preponderance of the
evidence. Id.[17] Probation revocation is a two-step process. Cox v. State, 850 N.E.2d 485, 488
(Ind. Ct. App. 2006). First, the court must make a factual determination
concerning whether a violation of a condition of probation has occurred. Id.Second, if the trial court finds a violation, the trial court must determine
whether the violation warrants revocation of the probation. Id. When a
probationer admits to the violation, the court can proceed to the second step of
the inquiry and determine whether the violation warrants revocation. Id. At
this point, the probationer must be given the opportunity to present evidence
that explains and mitigates his violation. Id.[18] Shannon does not dispute that he failed to obtain a substance abuse evaluation,
nor that his administration and probation fees were not current before the start
of his evidentiary hearing. Shannon heavily contests the finding that the he had
not maintained full-time employment or substantiated his employment details
with his probation officer. In addition, Shannon maintains that he did not
commit the new crime of possessing a controlled substance. At the probation
revocation hearing, Chambers stated that Shannon was required to work 35
hours per week but had only worked “20 to 22 hours” over a “three week
stretch.” (Tr. p. 40). Most importantly, four months after being released from
prison, Shannon committed a new offense. At Shannon’s evidentiary hearing,
Deputy Blossom reiterated Shannon’s statement that he received the
hydrocodone pill from a friend, and that he had no prescription. Shannon,
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however, recanted his prior statements and instead called his girlfriend to testify
that the hydrocodone pill was hers. This court has held that a probation
hearing is civil in nature, and the State need only prove the alleged violations by
a preponderance of the evidence. Cox, 706 N.E.2d at 551. As a fact-finder, the
trial court had to weigh and determine whether to believe Deputy Blossom or
Shannon. In this case, the trial court gave weight to Deputy Blossom’s
testimony.
[19] Lastly, we note that a single violation of the terms of probation is sufficient to
revoke probation. Snowberger, 938 N.E.2d at 296. Shannon violated not just
one, but several terms of his probation. As stated in the foregoing discussion,
Shannon admitted that he had failed to submit to a substance abuse evaluation
or make a good faith effort to pay his probation or administration fees. In
addition, by a preponderance of the evidence, the State successfully proved that
Shannon had failed to keep his probation officer informed about his
employment details, nor had he worked full time as ordered. More importantly
is that Shannon committed a new offense while still on probation.
[20] Based on the foregoing, it is apparent that Shannon chose not to follow the
conditions of his probation. In light of the foregoing, we decline to disturb the
trial court’s decision to revoke Shannon’s probation as he has failed to show
that the trial court abused its discretion in ordering him to serve the entire term
of the originally-suspended sentence.
CONCLUSION
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[21] Based on the record before us, we conclude that the trial court did not abuse its
discretion by ordering Shannon to serve his previously suspended sentence in
the DOC.
[22] Affirmed.
[23] Vaidik, C. J. and Baker, J. concur
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